Chief D.S. Yaro Vs Arewa Construction Limited (In Receivership) & 2 Ors (2007)

LAWGLOBAL HUB Lead Judgment Report

M. CHUKWUMA-ENEH, J.S.C

The plaintiff in this matter by a Writ of Summons has claimed against the defendants as follows:”(a) A declaration that the agreement by the 1st defendant to sell to the plaintiff all its interest in that property known as Plots Nos. 157/ 159 Club Road, Kano, had been completed by 1984, and that the lst defendant could not unilaterally rescind the said agreement thereafter.(b)A declaration that the plaintiff is entitled to delivery over to him of all the documents of title to the property aforesaid including in particular the Certificate of Occupancy Nos.13819 and 6929 registered as. No. I40 at page 140 in volume 8 (Misc) at the Lands Registry in the Office at Kano at present in the custody of the 2nd defendant.

(c)N500,000.00 special and general damages for wrongful refusal to return the said documents of title to plaintiff.”

The 1st defendant counter-claimed from the plaintiff in its Statement of Defence and Counter-Claim as follows:

“i.An order for account by the plaintiff to the 1st defendant of all sums of money the plaintiff has been collecting and collected from tenants since May, 1985 till date.

ii.Payment of such monies to the 1st defendant forthwith.

iii.Mesne profit on the 1st apartment in the said house and premium by the plaintiff in respect of No. 157/159, Club Road, Kano till date.

iv.A sum of N2 million for the increased indebtedness on the loan and interest by the 1st defendant to the 2nd defendant as a result of the breach of promises made by the plaintiff in respect of the said property No. 157/l59, Club Road, Kano State.

v. N100,000.00 being damages special and general for the trespass committed and still continued to be committed by the plaintiff on 1st defendant’s property No. 157/159 Club Road, Kano State.”

Particulars of damages: Special Damages.

Cost of damages to the building N400,000.00

and premises of the 1st defendant

at No. 157/159 Club Road, Kano

State General damages …….. N100,000.00

N500,000.00

The 2nd respondent also in its Amended Statement of Defence counter-claimed from the plaintiffs as follows as per paragraph 30 thereof at page 95 of the record:

“a.A declaration that the 2nd defendant by its authorised representatives and the plaintiff agreed orally at a meeting on 23rd July, 1985 as well as in a letter of the same date from the 2nd defendant to the plaintiff that the 2nd defendant would release the title documents to Nos. 157/159 Club Road, Kano to the plaintiff upon the payment by the plaintiff to the defendant of the sum of N500,000.00

b.A declaration that the agreement between the plaintiff and the 2nd defendant referred to above was on account of the 2nd defendant’s charge in the sum of N500,000.00 over the said properties Nos. 157/159 Club Road, Kano owned by the lst defendant, and that the plaintiff so knew and/or agreed with the defendant.

c. A declaration that the agreed agreement between the plaintiff and the 2nd defendant referred to the above was to be performed immediately on the day it was made orally and in the letter aforesaid i.e. on 23rd July 1985, or on or before 30th November, 1985 and that the plaintiff failed to perform his own part thereof.

d.A declaration that the – plaintiff’s failure to perform his part of the contract aforesaid automatically brought it to an end and the 2nd defendant’s offer pursuant thereof lapsed.

e.A declaration that the plaintiff’s failure or neglect to pay the sum of N500,000.00 to the 2nd defendant pursuant to their agreement was wrongful and that the 2nd defendant has thereby suffered loss and damage.

f.General damages in the sum of N100,000.00 for the plaintiff’s breach of contract between himself and the 2nd defendant referred to above and subject matter of these presents.

g.Costs and further or other relief.”

The record has showed that the plaintiff filed replies to the counter-claims; pleadings were filed and exchanged between the parties and at trial, the plaintiff testified and called 2 witnesses; the 1st and 2nd respondents each called one witness in their defence. The trial court in a considered judgment found for the defendants and made the following orders as culled from the judgment of the court below:

“(1) That the plaintiff’s claim failed and were all dismissed.

(2)That the plaintiff should render account to the 1st defendant.

(3) That the plaintiff should vacate the premises and stop collecting rent on the premises.

(4)That the plaintiff should pay N1,000,000.00 General damages to the 1st defendant

(5)That the plaintiff should pay N100,000.00 to the 2nd defendant.

(6)That the 1st defendant should refund to the plaintiff the sum of N1,800,000.00 after the property should have been sold.”

The plaintiff, aggrieved by the decision appealed to the Court of Appeal, Kaduna Judicial Division by a Notice of Appeal containing 17 grounds of appeal. The parties in compliance with Rules of the Court below filed and exchanged their respective Briefs of Argument. The court below after hearing the appeal gave a considered judgment dismissing the plaintiff’s appeal and in affirming the decision of the trial court, the court below held as follows as at p. 319 of the Record (the last paragraph):

“From all I have said, in this judgment, I am of the firm view that the trial Judge correctly dismissed the appellant’s claim before him and the appeal in respect of that aspect of his judgment is hereby dismissed. The trial Judge was also right in awarding the sum of N100,000.00 as general damages to the 2nd respondent and I dismiss the appeal as it relates to that award.

As for the counter-claim of the 1st respondent, it is my view that the 1st respondent failed to prove its claim and the trial Judge was wrong in giving judgment in its favour. Accordingly, the appeal succeeds in that respect and the judgment of the trial court in favour of the 1st respondent in its counter-claim is hereby set aside and the counter-claim is dismissed. From the circumstances of this case. I do not consider it appropriate to award any costs.”

With these pungent conclusions, the appellant’s case was dismissed; and feeling greatly aggrieved by the decision, he has finally appealed to this court upon a Notice of Appeal dated 3/10/1996 and therein has raised 4 grounds of appeal. Parties, again, filed and exchanged their Briefs of Argument in this court. The appellant filed his Brief of Argument on 2/4/2001 and has therein distilled 3 issues for determination and they read as follows:

“(1) Whether the court below was not in error when it affirmed the trial court’s decision that there was no complete agreement of the sale of the disputed property to the appellant.

(2)Whether the court below did not misdirect itself when in effect it held that there could not have been a valid sale of property to the appellant because the 1st respondent had offered the property for sale to INCAR NIGERIA LIMITED and because the appellant knew that until he paid the balance of N500,000.00 to the 2nd respondent, he could not have a valid transaction on the property.

(3)Whether the court below was not in error by affirming the award of N100,000.00 made in favour of the 2nd respondent as general damages.”

The 1st respondent also filed a Brief of Argument on 4/8/2004 which was deemed properly so filed and served; it has identified in the said Brief of Argument 2 issues for determination as follows:

“(1)Whether the Court of Appeal was right in coming to the conclusion that there was no complete agreement of sale of the disputed property proved before the trial court to enable it order specific performance thereof.

(2)Whether the Court of Appeal was right when it held that the payment of the sum of the N500,000.00 by the appellant to the 2nd respondent was preconditioned to the finalisation and/or validation of the agreement of sale.”

The 3rd respondent filed a Brief of Argument on 28/9/2001; besides, he has taken a point of preliminary objection and in the event of it being overruled has identified 2 issues for determination in his Brief of Argument as follows:-

“(1)Whether the Court of Appeal was right in holding that payment of the sum of N500,000.00 to the 2nd respondent was a condition precedent to the agreement for the sale of the disputed property.

(2)Whether the plaintiff can succeed in his claim in the absence of the Governor’s consent, pursuant to the provisions of the Land Use Act.”

The appellant has in response to the new question raised in the Briefs of Argument of the 1st and 2nd respondents on the preliminary objection, filed two Reply Briefs. The one in regard to the lst respondent was filed on 7 /2/2005 and the other on the 3rd respondent’s objection and other questions was filed on 5/10/2004.

The 2 respondents filed no Brief of Argument nor appeared before this court at the hearing even though served all the processes. In short, it has not showed any interest in these proceedings.

The 3rd respondent’s preliminary objection principally is that all the grounds of appeal encompassed in the instant Notice of Appeal are grounds of fact or at best, grounds of mixed law and fact; and characteristically that the grounds have been couched in a manner suggesting they are grounds of law. It is also the contention of the 3rd respondent that all the four grounds of appeal have been so couched as a collateral attempt to dislodge the concurrent findings of fact by the two lower courts.

Taking these grounds of appeal seriatim, the 3rd respondent has argued as follows: On ground 1 – that particular (c) refers to undisputed evidence in the matter. It is submitted that this ground cannot be gone into without a re-evaluation of the concurrent findings of fact and that paragraph (f) of the same ground has distorted the evidence accepted by the court, and so, will require that the facts have to be gone into all over again. The ground has therefore raised questions of mixed law and fact required leave of court.

On ground 2: this ground it is submitted has attacked the court’s finding of fact that there was no contract and that the offer was made to a different party not to the plaintiff and like ground 1 will require the court delving into questions of facts of this matter.

On ground 3: it is contended that particular (a) is seeking an evaluation of Exhibit 32 while particular (b) is challenging the finding of fact that there was a pre-condition to the contract and that particular (c) has alleged an agreement denied by the defendant. In respect of each of these particulars, it is submitted that issues of fact have been raised.

On ground 4: which has attacked the award of damages; it is contended by the appellant that there are no credible evidence to support the award and as submitted by the 3rd respondent, for this court to hold that the plaintiff’s evidence is not credible raises a question of fact.

Finally, it is submitted, the 4 grounds of appeal, having at best raised questions of mixed law and fact, that leave of the court below or this court is required to render them competent grounds of appeal, before this court; and not having sought and obtained leave, the appeal is incompetent and should be struck out. I think I should firstly, dispose of this objection one way or the other to pave the way to go into the substantive matter and so, I go ahead to state the response of the appellant to the preliminary objection. This is more so as the whole essence of preliminary objection is to foreclose hearing the appeal and like questions of objection, it is always best to take it first as it could result in saving valuable time. See Okafor v. Nwude (1999) 7 S.C. (Pt. I) 106. The appellant has raised a pertinent point of whether the preliminary objection is not improperly constituted vis-a-vis the provisions of Order 2 rule 9 of the Supreme Court Rules and therefore has urged that it be disregarded. I think this objection is diversionary as the matter is competent. Alternatively, it is submitted as follows:

On ground 1: that is, on particular (c), it has complained that erroneous conclusions have been deduced from undisputed facts and that any complaints of wrong conclusion from undisputed facts is a matter of law, even then, in the instant matter that the totality of the ground has posed a challenge to the misapplication of the law to the undisputed facts, which necessarily is a ground of law. See A.C.B. Plc v. Obmiami Brick & Stone Ltd. (1993) 5 NWLR (Pt. 294) 399 and Attorney General Kwara State v. Olawale (1993) 1 NWLR (Pt. 272) 649 and Arjay Ltd. v. A.M.S. Ltd. (2003) 2-3 S.C. 1; (2003) 7 NWLR (Pt. 820) 577 at 600-601 paras. F-A.

On Ground 2: i.e. has complained of misapplication of the law on facts in that there are rudiments of contract i.e. offer, acceptance and consideration founded on the undisputed facts yet the court found that there was no contract; it also misdirected itself on whether there must be a formal sale agreement or not. These questions, it is submitted do not call for evaluation of facts.

On Ground 3:- the complaint is that the court has taken into account wrong criteria in reaching its conclusion not in conformity with the guidelines as per the case of Nwadike v. Ibekwe (1987) 4 NWLR ((Pt. 67) 718 at 744-745 paras. C – D.The ground it is submitted is one of law.

On Ground 4: the complaint is against the quantum of damages awarded by the court. It is argued that the award of N100,000.00 general damages is a matter of discretion, not based on any known principles of law; besides as there is no admissible evidence to support the award, the award being illegal is an issue of law.

In conclusion, it is contended that the 4 grounds of appeal are questions of law. As to the matter of want of Governor’s consent raised in the said Reply Brief, 1 shall return to it later in dealing with the substantive appeal. To grapple with the questions raised by the preliminary objection, one must go into the grounds of appeal filed in this matter, and I set them forth as follows:

“(1) The court below erred in law in affirming the trial court’s decision that there was no complete agreement of sale of the disputed property to the appellant and thereby came to a wrong decision.

PARTICULARS

(a)It is settled law that an immediately binding contract will result if the parties have come to an agreement on all terms which they consider necessary to agree upon.

(b)The agreement of the sale of property was between the parties thereto namely the appellant and the 1st respondent.

(c)A binding and conclusive agreement of sale of the said property by the 1st respondent to the appeal had, on the undisputed evidence, been concluded latest by July 23, 1985.

(d)The equitable charge of N500,000.00 which the 2nd respondent claimed over the said property does not in law detract or derogate from the concluded, independent agreement of sale between the appellant and the 1st respondent.

(e)It is proper in law for the 1st respondent validly to dispose of its interest in the property to the appellant, the equitable charge notwithstanding.

(f)It is undisputed that the appellant had paid the entire purchase price of the said property less the balance of N500,000.00 and was put in physical possession by 1st respondent and carried out extensive renovation thereon with the 1st respondent’s knowledge and agreement.

(2)The court below misdirected itself in law by holding that:

‘……………….clearly this paragraph shows that the property was offered to INCAR Nigeria Limited by the Board of the 1st respondent; certainly not to the appellant as claimed by him in his evidence. When it was intended to sell the agreement, Exhibit 47 was prepared but INCAR Nigeria Limited failed to endorse it. Throughout the proceedings, the appellant failed to tender any sale agreement of the property to him. He only tendered documents to show that he was negotiating to purchase the property.. In my respectful view, the fact that the appellant was put in possession of the property did not validate the sale. He certainly knew that until he paid the balance of N500,000.00 to the 2nd respondent who had the title deeds, he could not have a valid transaction of the property.’

and thereby came to an erroneous decision in this case.

PARTICULARS

(a)The identity of the purchaser of the said property was not made an issue on the pleadings.

(b)The failure to tender any sale agreement by the appellant is irrelevant as the sale of the said property by the 1st respondent to the appellant was not in dispute in the proceedings.

(c)The concluded contract of sale between the appellant and the 1st respondent is different and independent in law from the 2nd respondent’s undertaking to the appellant to release the title documents of the said property to him on receipt of the sum of N500,000.00 due to the 1st respondent representing the balance for the purchase price of the said property.

(d)The validity or otherwise of the agreement of sale of the said property between the 1st respondent and the appellant was not predicted on the payment of the said N500,000.00 to the 2nd respondent.

(3)The court below misdirected itself in law by holding that:

‘for example, Exhibit 32 which was addressed to the appellant by the 2nd respondent made it clear that the 2nd respondent undertook to release to him the title documents to the property on payment to it of the sum of N500,000.00. That was certainly a precondition to the finalisation of the agreement of sale, notwithstanding the fact that the appellant had already made part payment. I have therefore come to the firm conclusion that there was no complete agreement of sale of the disputed property proved before the trial court……’and thereby came to a wrong decision in the matter.

PARTICULARS

(a)Exhibit 32, by the 2nd respondent is extraneous in law to the construction of the validity or otherwise of the agreement of sale between the appellant and the 1st respondent.

(b)There was absolutely no pre-condition to the finalisation of the agreement of the sale of the said property between the appellant and the 1st respondent.

(c)The validity of the sale agreement between the appellant and the 1st respondent was neither challenged nor put into question by the 2nd respondent.

(4)The court below erred in law by affirming the award of N100,000.00 as general damages to the 2nd respondent against the appellant and thereby came to an erroneous decision.

PARTICULARS

(a)There was no admissible or credible evidence in law to support the said award of N100,000.00 as general damages.

(b)The said award of general damages was not based on any principles known to the law.

(c)Quantifiable items of claim cannot in law be lumped together under general damages and they must be specifically proved and not assumed.

(d)The 2nd respondent did not make out a case for the said award of general damages, as required by law.

(e)In law, it is not for the court to make out a case for a party.

(f)Further grounds of appeal will be added on the receipt of the Record of Appeal and the certified true copy of the judgment.”

The provision of Section 233 of the 1999 Constitution is directly in point particularly on the backdrop of the objection taken here. Section 233(2) and (3) of the 1999 Constitution covers questions of Rights of Appeal (i.e. as of right or by leave) to this court from the court below and it says and I quote:

“233(1) The Supreme Court shall have jurisdiction to the exclusion of any other court of law in Nigeria to hear and determine appeals from the Court of Appeal.

(2) An appeal shall lie from decisions of the Court of Appeal to the Supreme Court as of right in the following codes:-

(a)not applicable

(b)not applicable

(c)-not applicable

(d)not applicable

(e)not applicable

(f)not applicable

(3)Subject to the provisions of subsection 2 of this section, an appeal shall lie from the decisions of the Court of Appeal to the Supreme Court with leave of the Court of Appeal or the Supreme Court.”

(For emphasis)

Appeals to this court by leave which otherwise means permission, relate to matters of facts or mixed law and fact for which leave of the court below or this court must be obtained as a matter of condition precedent: See Nalsa & Team Associates v. N.N.P.C. (1991) 10-12 S.C. 83; (1991) 8 NWLR (Pt. 212) 652 SC. This court has the responsibility to ensure that the grounds of appeal in respect of the matters before it fall within its constitutional competence. In this regard, therefore, a ground of appeal is not let off the hook simply because it is tagged an error in law. This court must be satisfied it is so. See Ojemen & 4 Ors. v. Momodu II (1983) 3 S.C. 173. The consequence for not seeking leave where a ground of appeal is of mixed law and fact is fatal to the ground. However, one ground of appeal on law in a Notice of Appeal, I must observe, is capable of sustaining an appeal but not otherwise in which case the Notice of Appeal as well as the grounds of appeal is incompetent and liable to be struck out.

To determine whether a ground of appeal, as in this matter, is one of law or mixed law and fact or both is not a straight forward matter as it stretches the ability of the court to its limits. However, I have to go on to sieve through the instant 4 grounds of appeal and their particulars as raised in the instant Notice of Appeal guided by the guidelines as enunciated in the case of Nwadike v. Ibekwe (supra), to sort out whether all or any of the 4 grounds of appeal are questions of law. This court in Nwadike v. Ibekwe laid down the general propositions to guide in this exercise and they are as follows:

“(1) It is an error in law if the adjudicating tribunal took into account some wrong criteria in reaching its conclusion or applied some wrong standard of proof or, if although applying the correct criteria, it gave wrong weight to one or more of the relevant factors; see O’ Kelly v. Trusthouse Forte Plc (1983) 3 All ER at p. 468.

(2) Several issues that can be raised on legal interpretation of deeds, documents, terms of art, words or phrases, and inference drawn therefrom are grounds of law; see Ogbechie v. Onochie (supra) at pp.419-492.

(3) Where a ground deals merely with a matter of inference, even if it be an inference of fact, a ground framed on it is a ground of law; provided it is limited to admitted or proved and accepted facts; see Edwards v. Bairstow (supra) p.55; H. L., for many years, it has been recognised that inferences to be drawn from a set of proved or undisputed facts, as distinct from primary facts, are matters upon which an appellate court is as competent as the court of trial; see Benmax v. Austin Motor Co. Ltd. (1945) All ER. 326 at p.327.

(4) Where a tribunal states the law on a point wrongly, it commits an error in law.

(5) ….Where the complaint is that there was no evidence or no admissible evidence upon which a finding or decision was based. This is regarded as a ground of law, on the premises that in a jury trial there would have been no evidence to go to the jury,” 1

Using the foregoing guidelines amongst others have helped the courts to resolve questions in this regard.

On Ground 1: l am more than certain that particulars (c) and (f) are clear in questioning the conclusions reached on the undisputed evidence before the court below and not on the correctness of disputed facts which otherwise would attract a re- evaluation of evidence; some of the undisputed facts are that the appellant has taken possession of the property, carried out extensive repairs and renovations of the property, put in rent paying tenants and has paid the purchase price less the balance of N500,000.00. The ground has challenged reaching of wrong conclusions or inference from undisputed facts; thus, it is challenging misapplication of the law to undisputed facts as against disputed facts. The lower court it is complained has misunderstood the import of the admitted facts in this regard.see Ogbechie v. Onochie (1980) 2 NWLR (Pt. 23) 484. The question in this ground is one of law: See A.C.B. Plc. v. Obmiami Brick & Stone Ltd. (supra), Attorney General Kwara State v. Olawale (supra) and Arjay Ltd. v. AMS. Ltd (supra).

On ground 2: The whole gamut of ground 2 and its particulars come to a misdirection in law; the court is misled to hold that there is no contract; the ground and its particulars have challenged that conclusion as resulting from misunderstanding of the rudiments of contract consisting of offer, acceptance and consideration; and given as a common cause between the parties; they otherwise constitute a valid agreement. See Ogbechie v. Onochie (1980) 2 NWLR (Pt. 23) 484 and also whether in a contract of sale there must be a formal sale agreement or not. Undoubtedly, this ground raises questions of pure law and involves no evaluation of facts.

On Ground 3: This ground challenges the taking into account wrongfully an extraneous factor, in this instance, the undertaking to pay N500,000.00 by the appellant given to the 2nd defendant, in reaching the conclusion that there is no complete agreement of sale ab initio between the appellant and the 1st respondent. The ground read on the backdrop of its particulars is contending that there is a complete agreement of sale of the property to the appellant without taking into account the collateral matters. This does not call for a re-evaluation of fact as it is attacking the conclusion so reached. In the light of the foregoing, I refer and rely on one of the five classes of identifying a ground of law as per Nwadike v. Ibekwe (supra) and I quote:

“(1) It is an error in law if the adjudicating tribunal took into account some wrong criteria in reaching its conclusion or applied some wrong standard of proof or if although applying the correct criteria, it gave wrong weight to one or more of the relevant factors. See O’ Kelly v. Trusthouse Forte Plc (1983) 3 at 468.”

Ground 3 considered upon the above principle is unquestionably a ground of law as it is complaining of introducing extraneous element into the agrement of sale reached between the parties.

On Ground 4: The particulars of ground 4, particularly (a) and (d) belie the conclusion that ground 4 is anything but an error in law as the said two particulars of error (a) and (d) have showed that the real question is against evaluation, assessment, findings of facts as to the award of N100,000.00 as general damages. These particulars are there to explain and support the core issues in ground 4 and these particulars being part and parcel of ground 4 must stand or fall with ground 4. See Mba v. Agu (1999) 9 S.C. 73. Undeniably, this ground has not raised a question of law. Clearly the ground raises issues of mixed law and fact as it involves re-evaluation of facts and so, requires leave of the court below or this court. And not having sought and obtained such leave, the ground is declared incompetent and it is struck out. The consequence of having struck out ground 4 is that the issue for determination distilled from it automatically becomes incompetent as having no basis. In this regard, it must be ignored. See Omo v. Delta State (2000) 7 S.C. (Pt. II) 1. In the absence of the appellant tying the 4 grounds of appeal to their respective issues for determination, I am in no doubt that issue 3 in the appellant’s Brief of Argument is completely founded on ground 4 as its general discussion in the appellant’s Brief bears out. This conclusion is supplemented by the appellant’s submissions under sub-head (g) in the said Brief under issue 3 at p. 14 of the record, last four sentences of that page; it reads thus: “The award of damages, has been based on erroneous application of the law and misapplication of the facts”. See Evans v. Bartlans (1937) AC 473 & Oduro v. Davis (1952) 14 WACA 46; Ediaghenya v. Dumez (Nig.) Ltd (1986) 3 NWLR 753. Need one any other proof that ground 4 is truly one on facts No. Therefore, issue 3 having no basis is hereby discountenanced.

In the result, I find no substance in the preliminary objection to grounds 1, 2 & 3; it is hereby overruled but it is sustained with regard to ground 4, which is hereby struck out.

I have to come to the appeal proper. The facts of this matter as I have found out are well set out in the judgment of the court below and I adopt the facts as so set out thereat and replicate them in this judgment as from pp. 312 to 313 of the record as follows:

“The 1st respondent owned a landed property known as Nos.157/159, Club Road, Kano which it mortgaged to the 2nd respondent by depositing the Certificate of Occupancy with it in consideration for a loan granted to the 1st respondent. The 1st respondent was in financial difficulty and decided to sell the property to INCAR Nigeria Ltd. As per the Board resolution of the Company in Exhibit 30, INCAR Nigeria Ltd, declined the offer to buy the property and the appellant then entered into negotiation to buy the property for himself for the sum of N2.3 million to be paid in instalments sometime in 1983. He continued to pay the instalments until he had paid a total of N1.8 million leaving a balance of N500,000.00. Sometime in 1984, the appellant was put in possession of the property by officials of the 1st respondent. He improved the property and let it out to tenants and began to collect rents. Meantime, he had not paid the balance of N500,000.00. In July, 1985, the appellant and the 2nd respondent agreed that if the appellant paid the balance of N500,000.00 to the 2nd respondent, it would release the documents of title to the appellant as per Exhibit 32. The appellant was unable to make the payment throughout the year 1985 and the 2nd respondent then wrote Exhibit 49 cancelling the whole transaction on the ground that it could no longer wait indefinitely for the appellant to pay up. Following this, the appellant tried in vain to pay the money in 1986 but the 2nd respondent refused to accept the payment. The appellant then went to court to enforce specific performance of the contract of sale.

The respondents counter-claimed as set out earlier in this judgment and the 2nd respondent called a witness to testify that it had lost a lot of money by the failure of the appellant to pay to it the sum of N500,000.00. The lst respondent also requested the court to order the appellant to account for the rents collected by him. The learned trial Judge dismissed appellant’s claim and gave judgment in respect of some of the counter-claims of the respondents.”

One thing that is very startling about this case is the way it has been handled by the two lower courts that is, leaving out of their discussion on one aspect of the mortgage created by the deposit of the 1st respondent’s title documents with the 2nd respondent bank and its wide legal implications in the con of this matter. This is because there is no other way of identifying the 1st respondent’s extent of interest in the disputed property other than by examining in its ramification, the deposit of the 1st respondent’s title deeds in the mortgage transaction vis-a-vis the bank loan granted it by the 2nd respondent.

The appellant arguing issue one in his Brief of Argument has hinged his case on the parties having entered into a complete agreement of sale of the disputed property following upon which the appellant has been put in possession of the property. And so, he claims entitlement to an equitable relief of specific performance of the agreement of sale and has applied to the court to grant the remedy in exercise of its equitable jurisdiction. He has referred to the holding by the court below at p.316 LL5-9 of the record to the effect that unless he paid the balance of N500,000.00, the transaction is not valid. Nonetheless, the appellant has contended on the undisputed facts that the undertaking given by the appellant to pay the sum of N500,000.00 to the 2nd respondent to be able to call for the title deeds has been made after the agreement of sale had been completed. Even then, as a follow-up to their agreement; that by Exhibit (28A), a letter of 15/2/83, Alhaji A.B. Waziri, the Chairman of the 1st respondent company to the appellant, has told him the company would vacate the disputed property about July, 1983. Also by Exhibit 29A, a letter written by the Managing Director of the 1st respondent Company, one P. Destafano, to appellant, has conveyed to him the realistic dates of vacating the disputed property. So also by another letter, Exhibit 31A, Alhaji A.B. Waziri wrote to the appellant asking for more time for the title deeds to be handed to the appellant. It is argued, in the circumstances, that this relationship has arisen between them, because the agreement of sale of the property has been successfully concluded. And besides, that Exhibit 31A has not said as contended by the respondents that surrendering of the title deeds to the appellant has to depend on a prior payment of N500,000.00. Supportive of this contention is the evidence by the 2nd respondent to the effect that the 2nd respondent would first release the title deeds to the appellant before the payment of the balance of N500,000.00. The appellant makes the point that the 1st respondent has neither in the pleading nor in their evidence challenged the capacity by which the three gentlemen of the 1st respondent’s company, the Chairman, Alhaji Waziri, a Director-Piero Destafano and Alhaji I. M. Chado-General Manager and Alternate Director respectively who transacted the deal on its behalf, have acted. The 1st respondent cannot do so now, the appellant has submitted and so, he relies on the import of Section 149( c) of the Evidence Act, Cap. 112 Laws of the Federation, 1990 and on the latin maxim: Omnia praesumuntur rite esse for the proposition. Finally, the appellant contends therefore, that it is erroneous to hold that there is no agreement of sale between the appellant and the 1st respondent upon which specific performance could be granted.

The appellant’s case under issue 2 has challenged the conclusions of the court below that there could not have been a valid sale of the said property to the appellant because the 1st respondent had earlier offered the disputed property for sale to Incar (Nig) Ltd and not to the appellant and even then that the appellant is aware that until he has paid the balance of N500,000.00 to the 2nd respondent, there could not be a valid transaction on the property. He has attacked the misunderstanding of the statement credited to him as overlooking the basic principles of contract. And so, that it is wrong to say the appellant has only tendered letters showing he has been negotiating to purchase the property as against Incar (Nig) Ltd to whom a formal sale agreement had been sent for initialling. It is strongly contended upon the admitted facts that the appellant has taken possession of the said property, has carried out extensive repairs and renovations of the same and put in rent paying tenants; all these to the knowledge of the 1st respondent and which can only be explained on the basis of their being a complete sale agreement between the appellant and the 1st respondent as to the said property. It is also submitted that wrong conclusion have been drawn from the evidence given by the appellant to the effect that he agreed to pay N500,000.00 to the 2nd defendant in order to get the title deeds back, as the 1st respondent must still give him an assignment before the transaction could be valid. The appellant has submitted that, the foregoing statement having been misconstrued has been taken out of the con to mean that until he has paid N500,000.00 to the 2nd respondent, there will be no valid deal. He debunks the submission.

On Issue 3: It has been struck out as having been founded on ground 4 filed in this matter without leave of either the court below or this court as being incompetent. See Section 233(3) of the 1999 Constitution.

The 1st respondent on issue 1 in its Brief of Argument here has alleged that there is no complete agreement of sale of the disputed property to the appellant as there are no facts as to any offer of it to the appellant by the Board of Incar (Nig) Ltd., and no formal sale agreement either. It is contended that any negotiations in the absence of a Board decision to sell the property to the appellant is of no effect. And further, that by not paying the N500,000.00 to 2nd respondent as agreed, a condition precedent, to the agreement of sale, there can be no complete agreement of sale and because of that default, the title deeds cannot be released to him.

Again, the point is taken that the 2 lower courts have made concurrent findings of facts inter alia, that there is no complete agreement of sale and that the appellant has not so far showed that these findings are perverse. Again, the point is taken that the evaluation of evidence and ascription of probative value to such evidence are the primary functions of the trial court which, saw, heard and assessed the witnesses. It is contended that where as here the trial court has made findings of facts, to the effect that there is no complete agreement of sale, which finding is not perverse, that this court has no business substituting its own views for those of the trial court, and that the court below has adhered strictly to this principle of law in approaching this matter. See Anyawu v. Mbara (1992) 2 NWLR (Pt. 243) 386 at 404 paras. E-F; Isaac Gaji & Ors v. Emmanuel D. Paye (2003) 5 S.C. 53; (2003)5 SCNJ 20 at 32. And so, it is reiterated that an order of specific performance cannot lie as the appellant has breached the contract to pay N500,000.00 to the 2nd respondent whereby the 2nd appellant has undertaken to release to the appellant the title documents to the said property. See Universal Vulcanising (Nig) Ltd. v. I. U. T. & T. Company Ltd. & Anor. (1992) 11-12 SCNJ 243 at 257. It is also the case of the 1st respondent that where a contract contains interdependent undertakings, a plaintiff cannot obtain in his favour, an order for specific performance if he has breached his obligation. See Australian Harwoods Property Ltd. v. Commissioner for Railways (1961) 1 AER 737 at 797; Anaeze v. Anyaso (1997) 5 SCNJ 151 at 170.

On issue 2: The 1st respondent has argued that unless the sum at N500,000.00 is paid to the 2nd respondent who has the title deeds, that putting the appellant in possession has not validated the sale of the property to him and that the court below rightly so found and besides, as it has not been the intention of the parties that the disputed property should so pass to the appellant without paying in full the purchase price of N2.3 million i.e. the premium. The 1st respondent in the premises has urged this court to dismiss the appeal and uphold the decision of the court below.

The 3rd respondent on his part has contended in his Brief of Argument that it is the intention of the parties in relation to the disputed property that payment must precede handing over the deeds of title and that the appellant having failed to fulfil the condition precedent before the offer was withdrawn, the title deeds in the disputed property cannot pass to the appellant. He refers to the critical evidence at p.316 of the Record elicited under cross-examination where the appellant has said that without assignment to him, there could be no valid transaction as clearly demonstrating their intention.

The 3rd respondent has also raised for the first time an aspect of the Land Use Act directly in question here as the 3rd respondent was not a party in the 2 lower courts but was joined as a party in this court. He questions the whole deal with regard to Section 22 of the Land Use Act, that is, as to want of Governor’s consent first had and obtained to the transaction. And that not having obtained the consent of the Governor, that reliefs (a) and (b) of the claim as sought cannot avail the appellant. See Awojugbagbe Light Industries v. Chinukwe (1995) 4 NWLR Pt. 379.

The court is urged to dismiss the appeal and uphold the decision of the court below.

I have read the appellant’s Reply Brief of Argument to the 1st respondent’s Brief. In my view, it has dwelt on two questions that is that:

(i) there is no evidence on record to show that the 1st respondent offered to sell the property in dispute to the appellant; and

(ii)there was also no sale agreement of the property to the appellant.”

These two questions as raised have been further discussed in the instant Reply Brief. I must say that these points have been duly covered in the appellant’s main Brief; so that the Reply Brief is a repetition of them. The purpose of Reply Brief is to tackle new issues or argument raised in the respondents’ Brief of Argument and not dealt with in the appellant’s Brief of Argument otherwise a Reply Brief would be tantamount to a repetition of the appellant’s main Brief. In other words, it should not serve as a forum for reopening the appellant’s case over again. And where it is coterminous in every respect with the appellant’s main Brief, it should be discountenanced. See Nwali v. State (1991) 5 S.C. 15; (1991) 3 NWLR (Pt. 182) 663; Okpala v. Ibeme (1989) 3 S.C. (Pt. I) 61; (1989)2 NWLR (Pt. 102) 208 and Essien v. C.O.P (1996) 5 NWLR (Pt. 449) 489. 2

I now come to the appellants’ Reply Brief of Argument to the 3rd respondent’s Brief. The new issue is none other than Section 22 of the Land Use Act on the contention that there is no indication that the consent of the Governor has been obtained. It is argued that the submission is made in error as the Governor’s consent is usually endorsed on the Deed of Assignment itself. See: Iragunima v. R.S.H.P.D.A. (2003) 5 S.C. 179; (2003) 12 NWLR (Pt. 834) 427 at 441 paras C-D per Ogundare JSC.

The appellant relying on Awojugbagbe’s case has contended that a party does not obtain the consent of the governor prior to the agreement of the parties or sale and that it is endorsed on the deed of assignment itself. Finally, the court is urged to allow the appeal.

This matter has raised some crucial questions as to the nature of the interests of the parties herein in the disputed property situate at No. 157/159 Club Road, Kano, Kano State, the subject of a mortgage by deposit of title deeds between the 1st respondent, as the mortgagor and the 2nd respondent, as the mortgagee. An adjunct to the question is the alleged agreement of sale of the disputed property which in my view, forms no part of the instant mortgage transaction but in a way, a collateral agreement of sale of the disputed property alleged to have been made between the 1st respondent (mortgagor), the appellant and the 2nd respondent, (mortgagee). I think I have to determine first what is the nature of the interest of the 1st respondent left after it had mortgaged the said property to the 2nd respondent and whether by the nature of the interest, it is capable of being transferred to a third party if at all bearing in mind that the 1st respondent could be called upon by the mortgagee, that is the 2nd respondent to convey the estate to it. I think it is timely to explore the nature of equitable mortgage:

“An equitable mortgage is an agreement that has arisen out of the deposit of the mortgagor’s title deeds with the mortgagee for loan as security. The essence of an equitable mortgage by deposit of title deeds is an agreement, between parties concerned, followed by an act of part performance. Where a party pursuant to an oral agreement deposits his title deeds with a bank as here, the act of depositing the title deeds is regarded as part performance of an agreement, which removes the transaction from the provisions of the Statute of Frauds 1677” as per Barclays Bank of Nigeria Ltd. v. Alhaji Adamu B. Ashiru & Anor. (1978) 6-7 S.C. (Reprint) 70; (1978) 6-7 S.C. 70

I therefore, start by looking at the agreement created between the 1st and 2nd respondents with regard to the mortgaged property. It is a common cause between the parties that the 1st respondent having taken a bank loan from the 2nd respondent has secured the bank loan by depositing its title deeds of the property situate at No. 157/159, Club Road, Kano, Kano State with the 2nd respondent. It is settled that the deposit of title deeds with a bank as security for a loan, creates an equitable mortgage as against legal mortgage which is created by deed transferring the legal estate to the mortgagee. See: Ogundiani v. Araba & Anor. (1978) 6-7 (Reprint) 42; (1978) NSCC (Vol. II) 55. An important feature of mortgages both legal or equitable is that once a mortgage always a mortgage and nothing but a mortgage. See: Adjei v. Dabanka (1930) 1 WACA 63 at 67; Kadiri v. Olusaga (1956) 1 FSC & Bank of New South Wales v. O’Connor (1889)14 AC 273.

The nature of a mortgagor’s interest left after mortgaging his property is known as Equity of Redemption which otherwise is an estate in land. See: Usenfowokan v. Idowu & Anor. (1975) NSCC (Vol. 1) 175. This is the 1st respondent’s portion in law after it has mortgaged the said property to the 2nd respondent. In other words, the 1st respondent’s interest is only to demand by way of right to an equity of redemption that the title documents be released to him on full payment of the loan advanced to it by the 2nd respondent. More importantly, in any dealing with the disputed property by the 1st respondent, the only interest the 1st respondent can part with in this respect is its interest in the equity of redemption, no more, no less; as it cannot even as the legal estate is residing in him grant an interest to supersede the equitable rights of the 2nd respondent over the mortgaged property without first getting rid of the whole amount of its indebtedness to the 2nd respondent under the mortgage loan. See: Usenfowokan v. Idowu (supra). In expounding the principles of equitable mortgage as I have encapsulated above, I refer to the case of Kadiri v. Olusaga (1956)1 FSC at p. 178 and I quote:

“It is the case, as stated by the learned trial Judge, that the security given was not the form of a legal mortgage, that is to say by deed, transferring the legal estate to the respondent, but the deposit of title deeds as security for a loan is an equitable mortgage, and I am unable to agree that the loan was an unsecured one within the meaning of the legislation in question. As Lord Macnaghten said when delivering the judgment of the Board in Bank of New South Wales v. O’Connor (1889) 14 AC page 273. ‘It is a well established rule of equity that a deposit of a document of title without either writing or word of mouth will create in equity a charge upon the property to which the document relates to the extent of the interest of the person who makes the deposit. In the absence of consent that charge can only be displaced by actual payment of the amount secured.’”

The case of Bank of South Wales v. O’Connor (supra) has been cited in Kadiri v. Olusaga (supra) and it is an authoritative decision on the principles I have adumbrated above, as well and is helpful in expounding on the nitty gritty of the complex problems that have come up in this matter and it has also held that:

“A mortgagor coming into equity to redeem must do equity and pay the principal interest and cost before he can recover the property which at law is not his. So it is in the case of an equitable mortgage. It is a well established rule of equity that a deposit of a document of title without either writing or word of mouth will create in equity a charge upon the property to which the document relates to the extent of the interest of the person who makes the deposit. In the absence of consent that the charge can only be displaced by actual payment of the amount secured…… Lord Eldon said: ‘I take it to be contrary to the whole course of proceedings in the court to compel a creditor to part with his security till he has received his money. Nothing but consent can authorise me to take the estate from the plaintiff before payment.”‘

The above cited cases have showed in relation to this case that the only interest the 1st respondent has left in the mortgaged property it can deal with at all material times, of the negotiations with the appellant for the agreement of sale of the said property is its interest in the equity of redemption and this is all it can pass on to a third party as the appellant. But is that what the facts here have showed This will become more certain as I go on to examine the facts.

The appellant has argued that a clear distinction has to be drawn between the agreement of sale made between the appellant and the 1st respondent through its Directors who have not acted ultra vires their powers in this matter, (that is, at least to the extent that such fact is pleaded nor adduced in evidence) and the agreement concerning the delivery of the title deeds from the 2nd respondent to the appellant. And I agree entirely I will come to discuss this distinction in full.

In the light of the above cited cases, let me advert to the position of the appellant vis-a-vis the 1st and 2nd respondents in this deal. I have showed above that the only interest the 1st respondent in equity can deal with is the equity of redemption not the legal estate in the said property. See: Barclays Bank of Nigeria Ltd. v. Adamu B. Ashiru & Anor. (1978) 6-7 S.C. (Reprint) 70; (1978) 6/7 S.C. 70. The appellant from the very beginning of the deal with the 1st respondent over the said property has been aware i.e. acquainted with due notice of the bank loan and the mortgage of the said property to the 2nd respondent and the lodgement of the title deeds of the said property with the 2nd respondent to secure the bank loan. The appellant has had due notice that all he was negotiating was as regards the 1st respondent’s interests in the equity of redemption. And so, any purported attempt to transfer the legal estate by the mortgagor to the appellant as the 2nd relief in the claim is contending without getting rid of the mortgage debt and so, supersede the 2nd respondent’s equitable mortgage cannot be allowed in equity. See Usenfowokan v. Idowu (supra) and Barclays Bank of Nigeria Ltd v. Ashiru (supra). It must be noted that the equity of redemption which arises on the mortgagee’s failure to exercise his contractual Right of Redemption is distinguishable from the equitable estate remaining with the mortgagor on having deposited his title deed with the mortgagee. It is sometimes referred to as an equity of redemption: See Kreglinger v. New on Patagonia Meat & Cold Storage Co. Ltd. (1914) AC. I make this point to put to rest any misgiving as to the duality of its use in the con of this judgment.3 I will come to conclude this aspect of the judgment.

I now proceed to harmonise the positions of the appellant and 1st respondent in relation to the appellant’s claim in this matter particularly vis-a-vis whether between them there is subsisting a complete agreement of sale of the 1st respondent’s interest in the disputed property. And consequently, whether the appellant is entitled to call for the title documents in the hands of the 2nd respondent. The question that arises would be whether the 1st respondent is in a position to call for the release of the documents of title to it and so its successor-in-title the appellant when the mortgage debt has not been completely discharged. I doubt it.

A follow-up question is to determine whether as between the 1st respondent and the appellant of the facts of this case, there is a binding agreement of sale.

There are on record Exhibits 28, 29, 30 and 31 (or 28A, 29A, 30A & 31 A). They speak in unison on the 1st respondent’s attempt to vacate the property for the appellant who earlier had paid N1. 8m as part of the purchase price of the property as receipted, as per Exhibits 1,2,3,4,5 and 6. This deal has been conducted on behalf of the 1st respondent by its principal officers i.e. the Chairman, Managing Director and Directors who one may call the “alter ego” of the 1st respondent company. There is also evidence of having been let into possession of the property and the appellant having carried out substantial repairs and renovations of the property and of renting the property to rent paying tenants; all these to the knowledge and connivance of the 1st respondent, that is, without any challenge whatsoever from the 1st respondent. There can be no doubt that the 2nd respondent must have acquiesced in these acts by the appellant as it was very desperate to recall the loan in full and has cooperated with the appellant to get the loan repaid. The next question is whether these acts in the circumstance are consistent with the appellant’s claim of having reached a complete agreement of sale of the said property.

However, before then let me put along side it the contention of the 1st respondent. The lst respondent upon the foregoing fact situation is insinuating that there cannot be an agreement of sale when the appellant has failed to fulfil the condition precedent of paying N500,000.00 as undertaken by him before the offer to purchase the property was eventually withdrawn. It is the respondents’ case that the payment of the said N500,000.00 is tied to surrendering of the title deeds to the appellant even so, the answer by the appellant in this regard, under his examination-in-chief has not been so helpful as the 1st respondent has capitalised on it to contend that it is a conclusive fact that the payment of N500,000.00 is a condition precedent to releasing the documents. It should be noted that I have held herein that the undertaking to pay the sum of N500,000.00 to the 2nd respondent is collateral to the agreement of sale between the 1st respondent and the appellant. All the same let me revert to the appellant’s answer in this regard to see how damaging, to wit:

“I agreed to pay the N500,000.00 to the 2nd defendant because after getting the documents, the 1st defendant must still sign the Deed of Assignment to me before the transaction would be valid”.

I have read the foregoing abstract in the con of the appellant’s testimony at the trial and I do not see how it is damnifying of the appellant’s case here as the Deed of Assignment is the ultimate title document he requires to perfect his title to the said property.

The court below in its conclusions on the 1st respondent’s case upon the foregoing background has, however, held as follows:

“In my respectful view, the fact that the appellant was put in possession of the property did not validate the sale. He certainly knew that until he paid the balance of N500,000.00 to the 2nd respondent who had the title deeds he could not have a valid transaction on the property”.

Upon this finding, the court below has concluded thus:

“I have therefore come to the firm conclusion that there was no complete agreement of sale of the disputed property proved before the trial court to enable it order specific performance thereof”.

I most respectfully disagree with the above findings and conclusions reached by the court below in this respect as it runs counter to the drift of evidence. There can be no doubt that an equitable interest is acquired when there is payment of money coupled with possession. This is the case of the appellant on the facts of this matter therefore he has acquired an equitable estate founded on the 1st respondent’s equity of redemption. I hold the lower court’s finding above as perverse; it simply has occasioned a miscarriage of justice.

And I am very much aware that it is well established in cases as Atolagbe v. Shorun (1985) 1 NWLR (Pt. 2) 360; Adimora v. Ajifo (1988) NWLR (Pt. 80) 1 that in such cases, a finding is perverse where it runs counter to evidence and pleading or where it has shown that the trial court took into account matters which it ought not to have taken into account or shut its eyes to the obvious or when it has occasioned a miscarriage of justice. The two lower courts have in addition taken into account a collateral matter as to the undertaking given to the 2nd respondent to pay N500.000.00 for the title documents and thus, have improperly used it to becloud the contract (i.e. agreement of sale) between the appellant and the 1st respondent i.e. leading to their holding that there is no agreement of sale and this has occasioned a miscarriage of justice. 4

Very much aware of the findings of facts by the two lower courts in this matter, I must state, all the same, that where the evidence to be evaluated is mainly documentary as here, this court is as in goo