Alhaji Rasaq Adisa Oyebanji V. Mrs Patience Adunni Fowowe (2007)
LawGlobal-Hub Lead Judgment Report
ALFRED P.E. AWALA, J.C.A.
The Plaintiff (now respondent) claims against the Defendant (now Appellant) at the High court of Justice of Oyo State of Nigeria Holden at Ibadan are as follows:-
“(1) A sum of N280,000.00(Two hundred and Eighty Thousand Naira) being money advanced to the defendant by the plaintiff upon consideration that has totally failed.
(2)The sum of N150,000.00 being special damages suffered by the plaintiff as a result of failure of consideration.
(3) 10% interest on the sum found payable to the plaintiff from the date of the judgment till the whole judgment debt is finally liquidated.
(4) Cost.”
The facts of this suit briefly put, is about the sale of land at Bodija Ibadan, originally Ogunmola family land. A large portion of the land was sold to the Defendant/Appellant and one Kolade Adegboyega jointly under native law and custom out of which the plot now in dispute was sold to the Plaintiff/Respondent in 1995 by the duo and she immediately took possession of the land by building a block fence round it and erected an iron gate. She paid the sum of N280,000.00 (Two hundred and eighty thousand Naira) being the price of the said land to the Appellant which consideration has failed as there was a third party claim.
There was another sales agreement between the Respondent and the Appellant over another piece of land at Olode village via Ibadan to which she made part payment of N30,000.00 (Thirty Thousand Naira) over which she was not disturbed.
The third party at the Bodija land is one Professor Esan who sued the Respondent and the Appellant to court claiming title over the said land in dispute. After taking the Appellant and Respondent to court over the said land in dispute the Professor demolished the fenced wall and gate built by Respondent at Bodija.
The Respondent ultimately sued the Appellant for the return of the purchase money she paid for the disputed Bodija land as above for failed consideration.
Pleadings were ordered and settled by both parties and hearing of the case by Sanda J, commenced on 13/6/01 and ended on 26/7/01. In his considered judgment, the learned trial judge decided in favour of the Plaintiff and against the Defendant.
Dissatisfied, the defendant filed a Notice of appeal dated 6/7/01 formulating two grounds of appeal. As the grounds are crucial in the determination of this appeal. I shall reproduce same together with their respective particulars to wit:-
GROUNDS OF APPEAL
- The learned trial judge erred in law in awarding judgment in favour of the plaintiff when from the pleading and evidence tendered at the trial the plaintiff was unable to establish that the defendant’s title was defective.
PARTICULARS
(i) It was pleaded and established that suit I/243/06 Professor Esan v. Fowowe & Anr brought against the Plaintiff and the defendant to challenge their title to the land is yet to be established.
(ii) When the defendant had by evidence established his title to the property in dispute.
(iii) When from the evidence tendered the plaintiff can not repudiate the contract.
(iv) When the contract has been performed and the plaintiff has derived benefit from the contract.
- The learned trial judge erred in law in awarding special and general damages in favour of the plaintiff and against the defendant when there is evidence on record that Professor Esan or his agents damaged the wall fence of the plaintiff when the case Professor Esan brought against the plaintiff and the defendant was pending against them.
PARTICULARS
(i) When the action of Professor Esan and his agent was illegal.
(ii) When the plaintiff has a right of action against Professor Esan for the demolition of the wall fence and not against the defendant.
In compliance with the Rules of this court the parties filed and exchanged their respective briefs of arguments with the appellant’s counsel raising one issue for determination while the respondent’s counsel distilled two. The appellant sole issue reads thus:-
“Whether on the totality of evidence before the court, the learned trial judge was justified in holding that Appellant had no title to the land in dispute and that there was a breach of contract or breach of covenant for title between the Respondent and the Appellant over the land in dispute and for awarding damages for the said breach in favour of the Respondent and against the Appellant.”
On the other hand, the two issues couched by the respondent’s counsel for determination of this appeal read:
(1) Whether the learned trial judge was justified in holding that the plaintiff/Respondent not having quiet enjoyment of the parcel of land in question, there was a total failure of consideration for which the appellant is liable in damages.
(2)Whether the plaintiff is entitled to be indemnified for the losses sustained by her arising from the total failure of consideration.
In my view, the two issues formulated by the Respondent’s learned counsel are apt and are more germane to this appeal. I shall use them to resolve this appeal. This does not mean I will not consider the appellant’s sole issue, I certainly will. The two respondent’s issues were taken together by the Appellant counsel in his argument.
Appellant’s learned counsel J.O.A. Ajakaiye Esq. submits that it is a common ground that the appellant sold the land in dispute at Bodija to the respondent in 1995 and he immediately took possession of the same by building a block fence round it with an iron gate. No sooner the wall and gate were put in place, that one Professor Esan sued her jointly with the Appellant to the High Court at Ibadan for a declaration of title to the land in dispute in suit No I/243/96 (Exhibit PF14) and the said professor later returned to the land and demolished the wall fence. The respondent reported the matter to the police at Sango police Station Ibadan and the appellant and one Mr. Kola Adegboyega were arrested over the incident and the two of them were charged to a Magistrate court for stealing. They were later discharged. Appellant’s counsel further submits that the Respondent then sued the appellant alone to the High Court for failed consideration resulting in this appeal.
Appellant’s counsel submits further that the appellant was able to establish title to the land in dispute at the High Court by the evidence of DW1 who tendered Exhibit PF13 which is the evidence of the sale of the land to the appellant by the Ogunmola family unchallenged and not contradicted, and which was not accepted as the truth by the court, contrary to law. He cited Obanor v. Obannor (1976) NMLR 39, Nigerian Maritime Services Ltd. v. Alhaji Bello Afolabi (1978) 2 SC 79 at 81-82, Omoregbe v. Lawani (1980) 3-4 SC 108 at 117.
Contending further counsel submits that the learned trial judge was in error by not accepting and acting on the fact that the Appellant had title to the land he sold to the Respondent and was not in breach of contract or of covenant for title. The mere fact, he submits, that Professor Esan sued both of them (Appellant and Respondent) to court and demolished the said fence were not evidence that the appellant had no title to the land in dispute or that the Respondent had no title to the land in dispute sold to her by the Appellant and that can not be so not until judgment is entered in favour of the Professor and against the appellant and the respondent in the suit filed by the professor can it be said the Appellant is in breach of the covenant for title or has a cause of action against the appellant. He cited E.C.N. v. Chief M. A. Okupe (1967) 1 All NLR 1 p. 4-7, Imana v. Jarin Robinson (1979) 3-4 SC 1.
Arguing further the appellant’s learned counsel contended that from the facts of this case title to the land in dispute had passed to the Respondent, she having gone into possession, built a wall fence and erected iron gate thereon, not all part of the wall that was damaged by Professor Esan. In law the appellant had a cause of action against Professor Esan which right she failed to pursue. He cited K. Chellaram & Sons Nig. Ltd. v. Monsour Habib (1959) LLR 28 at 29.
Appellant’s learned counsel submits further that the Respondent had no cause of action for breach of contract against the Appellant over the land in dispute at all and that her action ought to have been dismissed. He cited Imana v. Jarin Robinson (supra). In Imana case (supra) the plaintiff was evicted because judgment was against his vendor. This is not so in this suit where the respondent had not been evicted.
As regards the land at Olode village, appellant’s learned counsel submits there is no evidence that the Respondent was disturbed thereat. She made part payment. She is not entitle to refund of the deposit of N30,000.00 she paid for that land as the Respondent had no reason to repudiate that contract. Indeed she is the one in breach of the contract to which she in turn is liable for breach of contract. No failure of consideration had been established thereat, counsel concluded. He cited Fowler v. Ojo (1959) LLR 105.
Concluding his argument, counsel submits that the award of damages by t he trial judge made for b reach of covenant for title thereby making a different claim for the plaintiff/Respondent, which she did not ask for at the trial is wrong. He cited Ekpenyong v. Efiong Nyong (1975) SC 71 at 81- 82. He urged us to resolve this appeal in favour of the Appellant and against the Respondent.
In response on the other hand, the respondent’s counsel, Akin Ladipo Esq. who also argued the Respondent two issues together submits follows:-
Firstly, that it is wrong to say that the learned trial judge pronounced on the issue of title to the land in dispute outside what was claimed before him. The claim is for breach of contract resulting from the respondent’s denial of her quiet enjoyment of the said land at Bodija exemplified by Professor Esan’s demolition of her wall fence and gate.
Secondly, counsel argued that it is a cardinal principle of law that grounds of appeal and issues formulated from them on appeal must arise from the ratio decidendi of the decision appealed, not from the reason for the decision. He cited Igwe v. Alvan Ikoku College of Education (1994) 8 NWLR (Pt. 363) p. 459 at 467. For example ground one of the notice of appeal from which the appellant’s sole issue was formulated complained of errors of law but it failed to quote the passage or particularize the error and where it occurred in the judgment of the court below. He submits therefore that ground one of the grounds of appeal can hardly qualify as a ground of appeal here because the claim is for refund of money that is to say N280,000.00 advanced to the defendant upon consideration that has totally failed and for N150,000.00 being special damages suffered by her as a result of the failure of consideration and interest at the rate of 10% payable to the plaintiff from the date of judgment till the whole judgment debt is finally liquidated with costs. (Emphasis by counsel)
Now, without much ado, I agree with Respondent’s counsel that the contention that ground one of the notice of appeal above and the aforesaid sole issue distilled from it above missed the point and should be struck out as they do not relate to each other. They are struck out. See Igwe v. Alvan Ikoku College of Education (supra)
Thirdly, Respondent’s learned counsel submits further that the respondent duly proved her case on oral and documentary evidence that her quiet enjoyment of the land she purchased from the Appellant at Bodija was disturbed by Professor Esan who demolished the wall fence and gate she erected on the said land. The appellant himself confirmed this evidence in his brief in this respect. (See page 4 paragraph 4.02 of his brief.)
Respondent Counsel submits further that ECN v. Chief M. A. Okupe cited by the appellant counsel does not apply in this case. The facts in that case are distinguishable from the facts in this case. In that action the vendor was not made a party to the existing litigation over the land. The litigation was not based on contract of sale of land (as in this case) but on conditions in a bond and so the question was not whether the existence of litigation would have entitled the plaintiff to rescind a contract of sale or not.
In the case on hand however not only was the appellant (vendor) made a party to the existing litigation challenging his title, he also executed a land agreement Exhibit PF3 in favour of the respondent in the following words “The vendors hereby indemnify the purchaser for whatsoever loss the purchaser may sustain as a result of interference by any person or things” (Emphasis by counsel)
Fourthly, that a party to a contract who does not receive the promised performance or consideration because of a breach by the other party is entitled to compensation. The measure of damages being the loss flowing naturally from the breach and is incurred in direct consequence of the violation. He cited Okeke v. Oche (1994) NWLR (Pt. 329) 688, Oladiti v. Sunoas Co. Ltd. (1998) 1 NWLR (Pt. 321) at 433, Wood Industries v. Bogo (1970) 1 All NLR 423.
Fifthly, Respondent’s counsel submits it is not in dispute that the Respondent’s quite enjoyment of the piece of land in dispute was disturbed by Professor Esan and his agents who pulled down her wall fence and the gate she erected on the land and that the Appellant having covenanted to indemnify her against any loss sustained as a result of any interference by any person or thing is liable to compensate the respondent for the loss naturally emanating or flowing from such interference.
Respondent’s counsel further submits in reply to paragraphs 4.07 and 4.08 of the Appellant’s brief that the respondents’ cause of action arose against the Appellant the moment Professor Esan and his agents demolished the wall fence and gate on the land at Bodija as there has been a breach of the respondent’s quiet enjoyment on the land. He cited Adepoju v. Afonja (1994) 8 NWLR (Pt.363) 437.
And as a further reply to paragraph 4.07 of the appellant brief, counsel submits even though the respondent had gone into possession at the Bodija land before the interference by Professor Esan, failure of consideration existed as the respondents had not enjoyed the benefit of what she bargained for. He cited Branwhile v. Wordestermarks France Ltd. (1969) AC 552. As for the land at Olode village, counsel submits that the trial court having found that the respondent was never given possession of the land for which she deposited N30,000.00; the respondent is entitled to refund of her deposit as no consideration was furnished for the deposit. He cited Fowler v. Cokes (1959) LLR.105
In sum total, the respondent’s learned counsel urged us to resolve the sole issue in this appeal in favour of the Respondent and dismiss the appeal as lacking merit.
Now, I have endeavoured to consider fully the arguments of learned counsel for the parties in this appeal to see at a glance where the pendulum in the scale of justice tilts. See Mogaji v. Odofin (1978)4 SC and Kate Enterprises Ltd. v. Daewoo Nig. Ltd. (1985) SC 1. It is obviously on the side of the Respondent. I hold the view; she did not enjoy the quiet possession of the land she bargained for. In other words, the respondent’s right of quiet enjoyment of the piece or parcel of land in dispute at Bodija was shattered and disturbed by the third party, Professor Esan and his agents, who pulled down her wall fence round the land in dispute and the iron gate she erected. The Appellant having covenanted to indemnify her against any loss she may sustain as a result of any interference by any person or thing, (see Exhibit PF3) the Covenanter/Appellant is liable to compensate the respondent for the loss naturally flowing from such interference as claimed.
As for the land at Olode village for which she allegedly paid N30,000.00 deposit, she did not take possession of it and she did not claim for its refund at the lower court either. She can not do so here. See Adegbaiye & Anr v. Loyinmi (1986) 5 NWLR (pt. 43) 655, Orogun & Anr. v. Rev. Soremekun & Ors. (1986) 5 NWLR (Pt. 44) 688, Alhaji Mohammed v. Ali & Anr. (1989) 2 NWLR (Pt 103) 349, Niger Progress Ltd. V. North East Line Corporation (1989) 3 NWLR (Pt.107) 68 and 10 Chief Okenwa v. Military Governor, Imo State & Anr. (1996) 6 NWLR (pt.455) 394.
I could very well have ended this judgment here and now but I will seize this opportunity to explain what “consideration” really is in the law of contract. In that instant, I recall the learned author of “Chitty on Contracts General Principles” 25th Edition at page 100 paragraph 144, where “consideration” is defined as something of value which must be given, and accordingly he states that consideration is either some detriment to the promise (in that he may give value) or some benefit to the promisor (in that he may receive value). Usually this detriment and benefit are merely the samething looked at from different points of view. Thus payment by a buyer as consideration for the seller’s promise to deliver can be described either as a detriment to the buyer or as a benefit to the seller, and conversely. Delivery by a seller is consideration for the buyer’s promise to pay; it can be described either as a detriment to the seller or as benefit to the buyer.
As for a plea of failure of consideration, the general principle is “where money has been paid under the transaction that is or becomes in effective, the buyer may recover the money provided that the consideration for the payment has totally failed, although the principle is not confined to contract, most of the cases are concerned with ineffective contracts. In that con failure of consideration occurs where the buyer has not enjoyed the benefit of any part of what he bargained for.” (Emphasis mine) See Branwhite V. Worchester Works Finance Ltd. (supra), S. O. Imana v. Madam Jarin Ronbinson (1979) 3-4 SC 1 at page 25, and Ojikutu v. Demuren (1957) 2 FSC 72 at 73 where the Supreme Court of Nigeria held, in the case of purchase of land the consideration of which had failed, the purchaser is entitled to the legal costs, the monies advanced for building, the cost of plan and the cost of deforesting the land.
In the end, I hold this appeal is unmeritorious and is dismissed. I assess the cost of the appeal at N5,000.00 against the Appellant and in favour of the Respondent.
Other Citations: (2007)LCN/2360(CA)
