Alh. Abdullahi Jalo V. Ali Muhammad (2005)
LawGlobal-Hub Lead Judgment Report
ALOMA MARIAM MUKHTAR, J.C.A.
A suit (No. ADSY/7/94) filed by the Plaintiff who is the Respondent in this appeal was struck out on 17/2/94. The Plaintiff applied that the case be relisted on the court’s cause list, and his prayer was granted on 28/3/95. The Plaintiffs case against the Defendant as per his statement of claim is – that he bought a house situated at Demasawo ‘A’ Ward Jimeta-Yola at N16,000.00 from the Defendant. The agreement was that the Plaintiff will make a part payment of N12,500, after which on payment of the balance of N3,500.00 the documents of ownership i.e. the complete documents of title will be handed to him by the Defendant. However, the Defendant reneged Ilorin the agreement and refused to surrender the house and also refused to collect the balance of N3,500 in spite of the fact that the Plaintiff had paid the initial N12,500 agreed upon. The Plaintiff claimed against the Defendant the following:
(i) Specific performance of the contract of sale of the house as contained in the contract of Sale Agreement.
(ii) An order of the Honourable Court on the Defendant to – collect his remaining balance of N3,500 and hand-over the house to the Plaintiff and also hand-over to the Plaintiff all the documents of ownership to the Plaintiff by signing all the documents of transfer of title.
(iii) An order of the Honourable Court on the Defendant to surrender and account for all necessary and consequential rents gained or received on the House already sold to the Plaintiff from 18/1/91 until the date of judgment.
(iv) The cost of this litigation.
In his own pleading the Defendant admitted the sale of the house in dispute to the Plaintiff but stated a different condition of sales which was that the balance of W3, 500 will be paid to the Defendant on or about 20th January, 1991 i.e. 2 days after the sale agreement on 18th January, 1991. On failure to pay the said balance after two months, the Defendant informed the Plaintiff that the sale was no more and he should surrender the original sale agreement and collect his deposit. Eleven months thereafter Plaintiff brought the said balance, which was rejected by the Defendant who in turn gave the deposit to the Plaintiff and who also refused to collect. A suit was instituted by the Plaintiff before the area court for possession of the house and the court ordered the Plaintiff to pay the sum of N12,300 cost of renovation of the house but he refused. He appealed to the Upper Area Court, Yola. The Defendant refunded the N12,500 to the Plaintiff, and sold the house in dispute to somebody else.
Parties adduced evidence which the learned trial judge evaluated, and at the end of the day found the Plaintiffs claim proved and gave judgment in his favour. Aggrieved by the decision the Defendant appealed to this court on four grounds of appeal which are as follows, (but without their particulars):
- The learned trial judge erred in law when he admitted in evidence and relied on an alleged Sale Agreement between the Appellant and Respondent in giving judgment in favour of the Respondent
- The learned trial Judge erred in law in giving judgment in favour of the Respondent when it was apparent that the Respondent failed to pay the balance of the purchase price within a reasonable time, an action which entitled the Appellant to rescind the contract sale.
- The learned trial judge erred in law when he ignored the defence of the Appellant that the property had been resold and when he went on to grant specific performance in favour of the Respondent.
- The decision is against the weight of evidence.
The Appellant’s counsel filed a brief of argument on 18/10/2000, which was served all the Respondent on 30/10/2000. The Respondent refused/neglected to file a brief of argument in response to the Appellant’s brief, hence on 19/11/2001, the Appellant’s counsel filed a motion on notice that the appeal be heard on the Appellant’s brief of argument alone. The Respondent was served with the motion on 21/12/2001, and on 28/2/2002 this court granted the order sought. As the appeal was fixed for hearing on 23/11/04, the Respondent was served with a hearing notice, but the Respondent as usual made no effort to take any step i.e. it was as though he was not interested in the appeal, and put up a lackdaiscal attitude. The court thus had no alternative than to hear the appeal on the day fixed, and learned counsel for the appellant adopted his brief of argument. Three issues for determination were formulated in the Appellant’s brief of argument, and they are namely:
(i) Whether the trial judge was right in admitting and acting on Exhibit A in giving judgment in favour of the Respondent?.
(ii) Whether it was right for the trial judge to enter judgment in favour of the Respondent when there was evidence that he did not tender the balance of the purchase price until after eleven months which made the Appellant to rescind the contract?.
(i) Whether the trial judge was right in ignoring the defence put forward by the Appellant against the Plaintiffs claim for specific performance i.e. that he had rescinded the earlier agreement and had resold the house in question to a third party?.
I will commence the treatment of the issues with issue (i) supra. Learned counsel for the Appellant in proffering argument there under submitted that in as much as Exhibit “AI” confers title to the property on the Respondent it qualifies as an instrument that ought to be registered under the Land Registration Law of Northern Nigeria Cap 58 applicable to Adamawa State. He further submitted that what is of importance is not the name given to the document by the parties but the effect of the document, and placed reliance on the case of Oredola Okeya Trading Company Nigeria Limited v. Attorney General of Kwara State & an or. (1992) 9 SCNJ 13. this case is slightly distinguishable from the instant case in that in that case the exhibit that was the bone of contention was held to be inadmissible not only because it was not registered but because consent was not obtained as per the requirement of the Land Tenure Law of Northern Nigeria.
Although the learned counsel has made no reference to any specific section of the Land Registration Law of Northern Nigerian supra, I find the following provisions useful and will evoke them for the purpose of this discussion.
S.9(1) of the said Law stipulates thus:
9(1)(a) No instrument executed after the commencement of this law, other than a power of Attorney, shall be registered unless it contains a proper and sufficient description, and, subject to the regulations a plan, of the land affected by such instrument.
At this juncture I will reproduce the said Exh. ‘A’ here below. It reads:
“This is an agreement letter which state thus:
I Alhaji Abdu Jalo, I sold my house to M. Ali Muhammadu here in Damsowo Ward near Alhaji Muhammadu Fambere residence at the cost of N16,000.00 (sixteen thousand naira only).
He paid me part of the money N12,500.00 (Twelve thousand five hundred Naira), he will pay the remaining balance of N3,500.00 (Three thousand five hundred Naira) before I hand over all the necessary documents of the house to him.
M. Ali Muhammadu Alhaji Abdu Jalo
Buyer Seller
Witness
M. Alhaji Mandara
M. Abdullahi Alh. Ali”.
Looking closely at the agreement and the provision of the Land Registration Law which I have reproduced supra, I fail to see that Exh. ‘A’ is a registrable 40cument that ought to have been registered. It does not contain a proper description of the house that is the subject matter of this dispute, nor that there is plan thereon to meet the requirement of that law, and so does not fall within the provision of the said Land Registration Law.
Quite clearly the above is an agreement and it was binding on the parties. It is a fact that the learned trial Judge relied on Exh. A1, but whether he treated it as transferring title to the property to the Respondent, is another matter that has to be looked at very carefully. I will reproduce the finding of the learned trial judge on this. It reads:
“From the contents of Exhibit ‘A’ reproduced above, one can but hardly fail to agree with R.N. Yerima Esq. for the Plaintiff that the said contents are clear and unambiguous. That in it there is no agreed time for payment of the balance of the payment of N3,500 and that the only condition as to payment of the balance is that the title deeds will only be surrendered to the Plaintiff after payment”.
I don’t think he did from the content of the above. Undoubtedly, there was no time allowed for the payment of the balance of the purchase price, having paid three quarters of the whole purchase price. For the foregoing reasoning, I resolve this issue in favour of the Respondent and dismiss ground (1) of appeal to which it is married.
On issue (2) supra leamed counsel for the Appellant referred to paragraph 3 of the statement of defence which reads thus:
“(3) The Defendant admits paragraphs 3 and 4 of the statement of claim to the extent that the plaintiff and the defendant on 18th January, 1991 agreed on the sale of the plaintiffs house for the sum of sixteen thousand naira only. The plaintiff paid the sum of twelve thousand five hundred naira with a promise to pay the balance on or about 20th, January 1991. The defendant waited for two months for the plaintiff to pay the balance. The plaintiff still failed to pay the balance and the defendant informed the plaintiff that he would no longer sell and that the plaintiff should come to collect his deposit after he must have surrendered the original settle agreement”.
In support of the above averment the defendant gave the following testimony:
“I agreed to sell the house to him at N18,000 and not N16,000 as told by the plaintiff. He gave me N12,500/1 promised to pay the balance the following day or the next day after. He did not bring the balance as promised I went to him and told him that as he failed to pay the balance as promised I have decided to cancel the sale. This was after about 2 months. He only brought the balance after 1 year and I told him that I have cancelled the sale. He then sued me at Civil Area Court, Jimeta”.
When cross-examined the Appellant stated thus:
“The N12,500 was with me until the plaintiff sued meat the Civil Area Court”.
It is instructive to note “here that even though the Appellant said he told the Respondent that he was rescinding the agreement, he made no effort to refund him the N12,500 he had received from him as deposit for the house, even up tot he time he had instituted an action in the Area Court. Funny enough he didn’t deem it fit to do so or to regard it as fair to do so. In the circumstance, it does not lie in the mouth of the Appellant to hold tenaciously to the failure of the Respondent to pay the balance of N3,500 as reason for rescinding the agreement and selling the house in dispute to another person .. Here i think I would like to evoke the equitable maxim “he who seeks equity must do equity”.
Learned counsel for the Appellant in making heavy weather of the unreasonableness of the non-payment of the N3,500 within a reasonable period placed reliance on the case of Odusoga v. Ricketts (1997) 7 SCNJ 135 where Ogundare J.S.C. said:
“It follows therefore that where the purchase price is not fully paid there can be no valid sale, notwithstanding date the purchaser is in possession. That possession cannot defeat the title of the vendor.”
First, it must be pointed here that the Respondent in this case was not in possession. Secondly, the present case is distinguishable from the above case, in that here the Respondent attempted to pay the balance of the purchase price within a year whereas in the above case the Respondent made no payment right from 1965 when the transaction took place until 1972 when the Respondent instituted an action for trespass. The time lapse in that case is not at all comparable with the one in this appeal. The question of unreasonableness of time of payment of the balance of purchase price as was thoroughly dealt with in that case does not arise here. They are in no way compatible. I agree with learned counsel for the Appellant that the fact that Exhibit ‘A’ was silent as to when the balance of purchase price would be paid should not make the trial Judge hold the view that the Respondent had up to eternity to pay the balance of the purchase price, but then it seems the Appellant did not display any seriousness on the issue of the rescinding of contract of sale, for if he had he would have refunded the amount deposited the very day he alleged he rescinded the agreement i.e. about two months thereafter. According to his evidence, he rescinded the agreement two months after the balance was not forthcoming, then the pertinent question is, why in that circumstance did he not immediately refund what he had already collected which was three quarters of the purchase price? Probably the Appellant wanted to eat his cake and have it by withholding the Appellant’s money. Perhaps to use it for the claimed renovation of the house when he knew he was no longer interested in parting with his property. Fairness and equity demands that the Appellant should have refunded the deposit promptly, and without delay. Besides, there was no time limit for the payment of the balance of the purchase price. In this wise, I am in full agreement with the learned trial judge when he said:
“It is not in dispute that the plaintiff offered to pay the balance to the defendant which he refused to accept. This runs counter to the express provision of the said Exhibit which is the binding agreement between the parties as there is no dispute that this is the only agreement between the parties”.
If the conduct of the Respondent in not paying the balance of the purchase price within a reasonable time was condemnable, as postulated by learned counsel for the Appellant, then I would say the conduct of the Appellant in not refunding the deposit to the Respondent as soon as he rescinded the agreement is also condemnable, for the maxim ‘he who seeks equity must do equity’ is applicable on both sides. In this vein, I resolve this issue (2) supra in favour of the Respondent, and dismiss grounds of appeal No. (2) and (4) to which it is married.
Now, to the final issue i.e. issue (3) supra for determination. In paragraph (5) of the Appellant’s statement of defence the following averment was made, and it reads:
(5) The defendant further states that after the plaintiff’s appeal to the Upper Area Court was dismissed, the defendant sold the house to somebody else.
The above is the defence raised by the Appellant on impossibility of performance. Agreed, that he raised a defence, but what about the supporting evidence? In his examination-in-chief the Appellant gave the following testimony:
“I have sold the house to another person after 2 years when the court returned ownership of the house to me. The house does not belong to the plaintiff ash e did not buy it. I paid the N12,500 he deposited to me in the civil area court”.
When cross-examined, he said he sold the house at N60,000.00 but did not have any sale agreement between him and Audu whom he said he sold the house to. I would say this is most inconceivable for in his pleadings he pleaded a sale agreement but four years later he changed his story. I find it difficult to believe that an agreement for a purchase of the said property was reduced to writing, when the amount involved was only N16,000.00 whereas when it was sold at N60,000.00 a written agreement was not deemed necessary. It is inconceivable and utterly unbelievable that a transaction for a property involving such an amount will not be reduced to writing. The said Audu to whom the house was sold was not even called to give evidence to that effect, so for all intent and purposes he does not exist. The Appellants defence in the lower court of impossibility to perform does not hold water, as it was not proved. In my view there was nothing to consider, and the Appellant/Defendant was not denied of fair hearing. Learned counsel for the Appellant in arguing this issue referred to the case of International ile Industries Nigeria Ltd. v Dr. Ademola Oyekanmi Aderemi & Ors. SCNJ 46. Which I believe is of no assistance in the particular circumstance of this case, in view of my finding above.
This last issue for determination is also resolved in favour of the Respondent and its related ground of appeal No. (3) supra fails and it is dismissed.
In the final analysis, the appeal fails in its entirety and it is hereby dismissed. The judgment of Banu J. of the Adamawa State High Court is hereby affirmed. I assess costs at N10,000.00 in favour of the Respondent against the Appellant.
Other Citations: (2005)LCN/1685(CA)
