Alhaji Yusuf Adeniran V. Alhaji Azeez Layi Olagunju (2001)

LawGlobal-Hub Lead Judgment Report

PATRICK IBE AMAIZU, J.C.A.

This is an appeal against the judgment of Ibiwoye J., of the Kwara State High Court, sitting at the Ilorin Division. The judgment was delivered on the 23rd day of September, 1998.

In the suit, the plaintiff now the respondent claimed two reliefs against the defendant now the appellant.

Pleadings were filed and duly exchanged. Both parties amended their pleadings at least once. The trial proceeded on the amended pleadings.

The claim in the amended statement of claim reads –

“(a) A declaration that the deed of transfer relating to the said house bought by the plaintiff from the defendant and lying and being at opposite Vehicle Inspection Office (behind Federal Housing Estate) Kulende, Ilorin, Kwara State, dated 11th of April, 1991, between the plaintiff and defendant is valid with legal effect.

(b) An order of specific performance against the defendant for a concluded agreement of sale on the building situate, lying and being at opposite Vehicle Inspection Office (behind Federal Housing Estate) Kulende, Ilorin.

(c) A perpetual injunction restraining the defendant and or his agents, assigns or privies from entering or living in the house and from collecting rents on the house and to refund the money so collected from April, 1991, on the house lying and being at opposite Vehicle Inspection Office (behind Federal Housing Estate) Kulende, Ilorin”.

At the trial, the respondent gave evidence and called four witnesses. The appellant gave evidence and called two witnesses.

Briefly, the facts which led to this appeal so far as they are material to the questions which call for our determination are – the respondent wanted to buy a house. He asked his relation to look for one for him to buy. About the same time, the appellant who was a transporter decided to sell his house as he was going back to his home town – Ijebu – Ijesha. He contacted the same estate agent through his relation to put up the house for sale. The estate agent took the respondent to the house. The respondent liked the house and expressed a desire to purchase it. He was told that the price was N80,000. He offered N60,000 which was accepted by the owner.

The appellant insisted that the agreement for the transfer of the house to the respondent must be prepared by Ibukun-Olu Chambers. It was the Chambers that prepared the agreement for the appellant when he purchased the land on which the building stands. The parties thereafter went to the Chambers for the agreement. It was there, that the respondent paid the plaintiff the agreed sum of N60,000. The agents who linked the parties asked for a commission of N10,000. The appellant accepted to pay the commission of N10,000, but insisted that it would be added to the purchase price, thus, making it N70,000.

After the parties had signed the agreement, the appellant asked the respondent to allow him to stay for a month, before packing out of the house. The appellant however introduced the respondent to the tenants as the new land lord. At the end of the one month, the appellant requested that he be allowed to stay for another 3 months. The respondent agreed to the extension. During the period of that three months, the respondent carried out construction work on the building by adding another structure thereon. At the end of the 3 months, the respondent received a letter from the appellant, asking him to pay N200,000 for the house or else to take back the money he had paid.

The evidence of the appellant on the other hand is that, he offered to sell his house for N200,000. He did not know that it was sold for N60,000 because he was blind. It was when he showed his Bank pass book wherein part of the money realised from the sale was deposited that he was told that the purchaser did not pay up to N200,000 for the house. He decided to back out of the sale. Finally, I observe, that the parties tendered documents to support their case.

After hearing the parties and their witnesses and the addresses of counsel, the learned trial judge gave a considered judgment. Part of the judgment reads-

“By the evidence of PW1, PW2, PW3 and PW5 it is quite clear that the price for the house is N60,000 while N10,000 for the agent was added to make it N70,000. This was agreed upon by both parties at the time of the sale of the house. It is also the evidence of PW2 that N58,000 was paid into the Bank vide Exhibit 1, dated 12/4/91, while the defendant withheld the sum of N2,000. It was later that the defendant unilaterally put the price of the house at N200,000. It is therefore, inconceivable to say that no ascertainable consideration for the contract sale, as submitted by the learned Counsel for the defendant (sic). The evidence of DW2 has shown clearly that the defendant was not blind at the time of the contract.

The result of all I have been saying is that, the plaintiff’s case succeeds as such the plaintiff’s claim is hereby granted”.

The appellant was dissatisfied with the judgment. He has appealed to this court. The learned Counsel for the parties filed and exchanged their briefs of argument. Before the appeal was heard, the learned Counsel for the respondent brought a motion on notice praying the court for –

“1. An order for leave of this Honourable Court to allow the respondent/applicant amend his statement of claim on page 116 of the record by adding the underlined paragraph 14(B) of Exhibit “A”.

2. An order deeming the proposed Exhibit ‘A’ as being amended in the record and deeming same as properly filed and served.
3. And for such further order(s) as the Honourable Court may deem fit to make in the circumstances”.

The learned Counsel for the respondent moved the motion before the appeal was heard. It was vigorously opposed by the learned Counsel for the appellant. This court after considering the submissions of the learned Counsel for the parties granted the application for an amendment. With the amendment, the reliefs sought by the respondent in the lower court now read-

“1. A declaration that the deed of transfer relating to the said house bought by the plaintiff from the defendant and lying and being at opposite Vehicle Inspection Office, (behind Federal Housing Estate) Kulende, Ilorin in Kwara State, dated 11th of April, 1991, between the plaintiff and the defendant is valid with legal effect.

2. Alternatively, an order of specific performance against the defendant for a concluded agreement of sale on the building situate and being at opposite Vehicle Inspection Office (behind Federal Housing Estate) Kulende, Ilorin, as per the evidence before the court.
3. A perpetual injunction restraining (sic) the defendant and or his agent, assigns, or privies from entering or living in the house and to refund the money so collected from April, 1991, on the house lying and being at Opposite Vehicle Inspection Office (behind Federal Housing Estate) Kulende, Ilorin, Kwara State”.

Both briefs were adopted and relied upon at the hearing of the appeal. Gbadeyan Esq, of counsel cited two additional authorities and urged the court to allow the appeal. On the other hand, Adeseko Esq, of counsel urged the court to dismiss the appeal.

Gbadeyan Esq, of counsel identified the following issues in his brief of argument for determination namely –

“1. Whether the court can make a declaratory order validating a deed of transfer dated 11th April, 1991, which it had earlier on rejected in evidence and so marked.

2. Whether or not the grant to the plaintiff/respondent by the trial judge of an equitable remedy or relief of specific performance and the 3rd relief as claimed in his pleading and upon available evidence, is well founded in law.
3. Whether or not the learned trial judge properly evaluated the evidence at his disposal in this case so much so that he can be adjudged to have reached correct finding or decisions in law.
4. Whether the leave granted to the plaintiff to amend his writ of summons and amend statement of claim was proper in law.”

Adeseko Esq, in his brief of argument adopted issue 2 formulated by the appellant’s counsel. In addition, he formulated the following issues-

1. Whether despite the rejection of deed of transfer, the trial court can still validate sale of the building agreement between the parties based on oral and other documentary evidence presented before the court.
2. Issue No.2 as formulated by the appellant’s counsel.
3. Whether having regard to the amendment granted the plaintiff amending his writ and statement of claim as at the time the trial court granted the amendment the grant to the respondent a specific performance is wrong in law (sic).

I have carefully considered the above issues, formulated by the learned Counsel for the parties. It seems to me that this appeal can be disposed of on the following two issues-

1. Whether the learned trial judge was right in law in granting the plaintiff the equitable relief of specific performance after he had rejected the deed of transfer dated 11th April, 1991.
2. Whether the leave granted the plaintiff to amend his writ of summons and the amended statement of claim was proper in law.

Before I deal with the above issues, I have to dispose of the preliminary objection raised by the learned Counsel for the respondent in his brief of argument. The objection reads as follows –

“Take Notice that the respondent shall at the hearing of this appeal rely on the following preliminary objections:-

1. The appellant’s brief dated 29th December, 1999, and filed on the same date is incompetent same not being filed within time.
2. The appellant’s record that was filed on the 11th Nov. 1998, at the lower court was served on the respondent on 16/2/99 and later filed his brief on the 29th December, 1999, without obtaining the leave of the court”.

The learned Counsel submitted that by Order 6 rule 2 of the Court of Appeal Rules, the appellant should file his brief within 60 days of receiving the record from the lower court. He reminded the court that the records of proceedings were served on the respondent’s counsel on 16/2/99, by the appellant’s counsel. In the learned Counsel’s view, it should be presumed that the appellant received his own brief on the same date. He urged the court to strike out the brief as it is incompetent as the appellant did not obtain the leave of court before filing his brief.

Gbadeyan Esq, of counsel in his reply submitted that the gravamen of the objection is that-

“It is presumed that the appellant received his own brief on the same date”.

He observed that this is a mere speculation and urged the court to dismiss the objection.

This court is asked to presume that the appellant received “his own brief on the same date”. To presume, means according to Oxford Advanced Learners Dictionary “to suppose to be true, to take for granted etc”. It is very elementary that no court acts on presumption. It acts on hard facts. In that case, the preliminary objection cannot stand.

There is however, a more important reason why the preliminary objection should be dismissed. The appellant filed before this court a motion on notice praying the court for-

“1. Extension of time within which to ask for leave to file the appellant’s brief of argument, reply brief and other processes out of time etc.”

The motion was heard by this court on the 6th of July, 2000. The record shows that Adesoko Esq, of counsel did not object to the granting of the application. Accordingly, the application was granted, and the sum of N1,000:00 was awarded as costs in favour of the respondent.

It is obvious that in the light of the foregoing, the objection is mischievous and was raised in bad faith and calculated to mislead the court. The preliminary objection is dismissed.

I now deal with the submissions of the learned Counsel on the above two issues. On issue one, Gbadeyan Esq, of counsel referred to a passage in the judgment. It reads

“With regard to issue No.1 raised by the learned Counsel for the defendant it is obvious that the court cannot make a declaratory order validating the deed of transfer earlier on rejected in the case”.

He submitted that in the light of the above, the learned trial judge was wrong in law to have held later in the judgment that-

“However the abundant evidence of the plaintiff and his witnesses has shown that there was a valid sale of the house of the defendant”.

In the learned Counsel’s view, there is no evidence to support the above finding of the lower court. He made the same submission in respect of the following finding of the lower court i.e. –

“I am therefore in full agreement with the submission of the learned Counsel for the plaintiff that from the surrounding circumstances inferences can be drawn that with or without the deed of transfer there is a valid sale of the building by the defendant to the plaintiff”

The learned Counsel submitted that the learned trial Judge was not consistent in his findings. In the learned Counsel’s view, an inadmissible evidence cannot be a proper basis for any declaration of right. He referred to the following cases –

Oredola Okeya Trading Co. v. A.-G., Kwara State (1992) 7 NWLR (Pt. 254) 412. Romaine v. Romaine (1992) 4 NWLR (Pt. 238) 650.

NITEL Plc v. Rockonoh Properties Co. Ltd. (1995) 2 NWLR (Pt. 378) 473.

He contended that the lower court having rejected the deed of transfer, even if the rejection was wrong in law, could not act upon it. To buttress this point, the learned Counsel cited the case of Akpasubi v. Umweni (1982) All N.L.R. 306 at 308 where the Supreme Court held that-

“It is elementary I think that once a trial court rejected the evidence of a witness and the Judge’s decision in regard thereto has not been challenged on appeal that is the end of that evidence for ever”.

The leamed Counsel referred to another passage in the judgment which runs thus –

“Since there is a breach of contract, the plaintiff is entitled to an order of specific performance. In this particular case it is my view that damages cannot adequately compensate the plaintiff herein for breach of the contract for sale of the defendant’s house”.

It is the learned Counsel’s view that the learned trial judge did not appreciate “the fact and laws applicable in this case”.

Finally on this, the learned Counsel submitted that the 2nd relief sought in the further amended statement of claim is incompetent and not capable of such grant in law”. He gave five reasons for the submission. The first reason is that the respondent did not lead evidence to support the new paragraph 14(b) in the amended statement of claim. The learned Counsel reminded the court that the paragraph was added after the respondent had closed his case. He cited the following cases –

Otanioku v. Alli (1977) 11 – 12 S.C. 9 at 13.

Adegbite v.Ogunfaolu & Or. (1990) 4 NWLR (pt. 146) 578.

The learned Counsel gave as his second reason the fact that it is not right in law and equity for the respondent to combine his claim “on both deed of transfer of 11th April, 1991, and at the same time, equitable remedy or relief of specific performance”. He referred to the case Adenuga v. Lagos Town Council(1950) 13 WACA 125 at p. 126.

The third reason is that under section 131(1) of the Evidence Act where a grant or other disposition of property has been reduced to the form of a document or series of documents no evidence may be given of such contract, grant or disposition etc. except the document itself or secondary evidence of its contents. He cited the cases of –

Alli v. Ikusebiala (1985) 1 NWLR (Pt. 4) 630 at 641.

Okubule v. Oyagbola (1990) 4 NWLR (Pt. 147) 723.

Sajere v. Iretor (1991) 3 NWLR (Pt. 179) 340.

He submitted that a transaction covering land like this, must be in writing. Oral evidence to vary the written document is therefore inadmissible. He referred to the following cases –

Anderson v. Graves (1975) L.R. 10 Ex. 234.

Vezey v. Rashleigh (1904) 1 ch. 634.

Akintola v. Solano (1986) 2 NWLR (Pt. 24) 598.

The fourth reason is that the appellant relied on the Statute of Fraud. He observed that the respondent did not deny or join issue with the appellant on the matter. He submitted that the respondent is deemed to have admitted it.

The fifth reason is that the respondent in his evidence said that-

(1) the draft agreement would not have been prepared in the Chambers of the appellant’s counsel – Ibukun Olu Chambers.

(2) a counsel from Ibukun Olu Chambers would not have confirmed the sale before the lower Court.

(3) the appellant would not have introduced the respondent to the tenants as the new land lord.

The learned counsel further observed that the claim that the appellant was blind at the time of the sale was denied by the specialist doctor who attended to the appellant. The learned counsel reminded the court that the doctor was the appellant’s witness. It is his view that his evidence was a solemn admission in favour of the respondent’s case. He cited the following cases –

Adeyeye v. Ajiboye (1987) 3 NWLR (Pt.61) 432,(1987) 7 S.C.N.J. 1

Aboyeji v. Momoh & Ors. (1994) 4 NWLR (Pt.341) 646, (1994) 45 CNJ 302.

Finally, the learned Counsel submitted that the learned trial judge adequately reviewed the evidence before him and arrived at the correct conclusion. He urged the court to resolve the issue in favour of the respondent.

I now deal with the point raised by the learned Counsel in their briefs of argument. It is trite that a valid contract can exist only when there is a “consensus ad idem” i.e., when there is a meeting of mind of the parties showing that the parties are bound by a specific term. This meeting of mind is, expressed in the form of “an offer” and “an acceptance” of that offer. It is only where they exist that there is a valid contract.

In the present appeal, there is evidence which the court believed that on the 11th day of April, 1991, the respondent paid the appellant the sum of N60,000.00 for the purchase of the house in dispute. PW4 of Ibukun Olu Chambers, prepared an agreement between the parties. The said agreement was read and explained to the parties before they and their witnesses signed/thumb printed same. From the above facts, it is evident that there is an offer to sell the house in dispute and an acceptance of that offer.

Generally, a contract may be oral i.e., (by parol) or in writing. There are however some contracts which the law mandatorily imposes a written requirement for the enforceability of such contracts. One of such contracts is a contract for the sale of land.

As has been mentioned earlier in this judgment, certain documents were tendered as exhibits in the lower court. Those documents tendered as exhibits that are relevant to this appeal are –

(a) Exhibit 1 – Savings Bank Deposit teller which shows that the appellant paid the sum of N58,000 into his account on 12th April, 1991.

(b) Exhibit 4 – a receipt issued to a tenant in the house in dispute by the respondent.

(c) Exhibits 3 & 6 – letters written by the appellant withdrawing the sale.

I have mentioned earlier that the law requires the evidence of a transaction in a sale of land to be in a note or a memorandum. It is necessary to mention also that no special form is prescribed for the note or memorandum. However from the authority of decided cases particularly from the decision in Hamilton v. Kofi Mensah (1937) 3 WACA 224 a document that will satisfy the description of a note or memorandum within the meaning of the statutory provision must contain the following details –

(1) names of the parties or enough description of the parties.

(2) the ample description of the subject matter of the contract.

(3) the consideration for the alleged contract; and

(4) the document must contain the signature of the party to be charged or that of his agent or a representative duly authorised by him.

A careful look at the above exhibits shows that they do not fall within the description of a note or a memorandum as required by law. But this is not all there is to it.

It is to be noted that one of the reliefs sought by the respondent in the lower court is for an order of specific performance. It is trite that in order for an action to be brought for the specific performance of a contract for the sale of land or any interest in land there must be a written memorandum of the contract signed by the defendant or by his duly authorized agent. It is observed however, that in certain circumstances a court may enforce an agreement caught by the above statutory provision notwithstanding that there is no note or memorandum in support of such agreement. This exception however, applies within certain defined limits. Our courts have accepted that notwithstanding that there is no note or memorandum the doctrine of part performance will operate in favour of the party seeking specific performance of a contract made in contravention of the statutory provision requiring written memorandum if the following conditions are satisfied

1. there must be proper oral evidence to prove or establish the terms of the contract.
2. the contract must be specifically enforceable in other words it must not be a contract of personal service and the like.
3. for any act to suffice as part performance it must be unequivocally, and in its own nature referable to some such agreement as that alleged. It is however enough if the act is such as prove the existence of some contract and is consistent with the contract alleged.
4. If the plaintiff has wholly or in part executed his part of parol agreement in the confidence that the defendant would do the same. This is doctrine of part performance.

A careful look at the evidence before the lower court shows-

1. There is oral evidence to establish that the appellant offered to sell the house in dispute for N60,000.The respondent accepted the offer.
2. The agreement between the appellant and the respondent is enforceable in the sense that it is not a contract of personal service.
3. The respondent was introduced to the tenants as the new land lord. He took possession of the property and carried out some repairs. He even collected rents from the tenants for some time.
4. The respondent discharged his own part of the contract fully i.e., by paying the purchase price.

From the above facts, it is clear that there is evidence that the conditions enumerated above were satisfied. It follows that the order of the lower court for the specific performance of the contract between the appellant and the respondent was in order despite the absence of a note or a written memorandum.

I observe that the respondent gave evidence that –

“I collected rents on the house from May to August 1991”.

This is an evidence against his interest. The learned trial judge was therefore wrong in ordering the appellant “to refund the money so collected from April 1991”. The refund should have been from September, 1991, in view of the evidence. Finally, I refer to the issue of fraud raised by the appellant. It is trite law that where fraud is alleged it must be specifically pleaded and the particulars of the fraud given in order to enable the party defending the allegation to understand the case he is facing and thereby prepare his defence. Highgrade Maritime Services Ltd. v. First Bank of Nigeria Ltd. (1991) 1 NWLR (Pt. 167) 290. Since in the present case fraud was not so pleaded in the statement of defence, the lower court could not go further to consider the issue of fraud because it would have been an exercise in futility which a court cannot afford.

The learned trial judge inspite of the fact that fraud was not specifically pleaded in the statement of defence considered it in his judgment. He came to the conclusion, quite rightly, in my view that;

“The issue of fraud has not been specifically proved”.

Subject to the above amendment, issue one is resolved in favour of the respondent.

On issue 2, Gbadeyan Esq, of counsel referred to the case of Laguro v. Toku (1992) 2 NWLR (pt. 223) 278 and enumerated the principles guiding amendments of pleadings generally. He observed that amendments are more easily granted, whenever the grant does not necessitate the calling of additional evidence or the changing of the character of the case. He cited a number of cases including –

Wiri v. Uche (1980) 1 – 2 S.C. 1

Afolabi v. Adekunle (1983) 2 SCNLR 141

Akoh v. Abuh (1983) 3 NWLR (Pt. 85) 696.

The learned Counsel conceded that the respondent sought to amend his writ of summons and statement of claim after he had closed his case. All his witnesses had testified. He contended that with the rejection by the lower court of the deed of conveyance, that court should not have allowed him to amend his reliefs to include a claim for specific performance. He submitted that the amendment occasioned a miscarriage of justice. It is his view that the amendment was wrongly granted. He urged the court to resolve issue 2 in the favour of the appellant.

In his reply, Adesoke Esq, of counsel submitted that an amendment can be made at any stage even before judgment is delivered once it is shown that it cannot prejudice the other party and it is in the interest of justice to do so. He referred to the case of Ojah & Ors. v. Ogboni & Ors. (1989) 1 NWLR (Pt.100) 725. In his view the lower court was right in granting the amendment. He urged the court to resolve the issue in favour of the respondent.

It is common ground that the respondent had closed his case before he applied for the amendment. He did not ask for leave to recall any witness or to tender any document. The amendment in my view is therefore, to prevent the manifest justice of the case from being defeated.

It has been accepted that courts may allow all amendments that are required for the purpose of using already available evidence and finding of fact of a trial court. Daiyi Horsfall & Ors v. Nume Victor West (1999) 4 NWLR (Pt.597) 120. The amendment therefore in my view, is in order. I resolve the issue in favour of the respondent.

On the whole, I find no merit in this appeal. Subject to the appellant starting the refund of rents collected by him from September, 1991, the appeal fails. I award against the appellant as cost N10,000.00 in favour of the respondent.

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Other Citations: (2001)LCN/1029(CA)