Chief Jonathan Mba-ede V. Peter Okufo (1989)
LawGlobal-Hub Lead Judgment Report
BABALAKIN, J.C.A.
This appeal deals partly with when the findings of fact of a trial Judge can be disturbed by an appellate court and partly with whether or not a person who has made part payment in pursuance of an oral agreement for alienation of land is entitled to a decree of specific performance.
The facts that gave rise to this appeal are that both the appellant who was plaintiff in the lower court and the respondent who was defendant in the said lower court are friends. By the story of the appellant as revealed in his statement of claim which accompanied his writ of summons, in 1975 the appellant leased two plots of land from Kuje Amuwo and Imore Family. The appellant erected an eight bedroom bungalow on one of the plots leaving the other plot vacant. Sometime in 1985, the appellant decided to sell the building on the land. He approached the respondent to ask him if he was interested in purchasing the building. The respondent said he was interested.
Negotiations followed and the purchase price for the building was agreed at N40,000.00. Immediately after the negotiation, the appellant fell ill. He went to his village in Anambra State. While the negotiations were on, the appellant quit all the tenants in the building. He locked up the place. In June, 1985, the appellant recovered from his illness. He came back to Lagos. He discovered that new tenants had been installed in the house, doors damaged, keys replaced and an open space in the building converted into bedrooms. On enquiry the appellant discovered that it was the respondent who broke into the house and put tenants therein. The respondent had also let the vacant plot of land to his Church- St. Stephen’s Catholic Church, Amuwo. The appellant asked the respondent why he took possession of his land and house when he the respondent had not made payment. The respondent promised he would pay the appellant the agreed N40, 000.00 in six months. The respondent did not pay neither did he vacate the land and building. The appellant decided to evict the tenants. This led to police intervention.
The respondent admitted before the Divisional Police Officer at Satellite Police Station that be had not paid any money on the land and building. The respondent was charged to court for conduct likely to cause a breach of the peace. The respondent has not quit the tenants in the building nor relinquished possession to appellant.
The appellant therefore issued a writ of summons on 17th March, 1986 claiming from the respondent as follows:-
”The appellant’s claim against the respondent is for:-
“(i) N50, 000.00 damages for trespass and damage committed by the defendant on the plaintiffs land and building thereon, situate lying and being at Amuwo, off Casco Street. Old Ojo Road, Lagos.
(ii) A Perpetual Injunction restraining the defendant, his agent and/or servants from continuing further acts of trespass on the said land with the building thereon. Annual Rental Value of the said land and building thereon is N1,200.00.
(iii) An order that the defendant do forthwith deliver up possession of the said property to the plaintiff.”
The respondent’s own side of the story is that the appellant and the respondent have been friends for a long time and were both in bakery and hotel business. In March, 1985, the appellant sought for and obtained a loan of N1,500.00 from the respondent. On 19th March, 1985, the appellant offered to sell to the respondent his house which he used as a hotel and an adjoining vacant plot of land. The respondent agreed to buy and the purchase price was agreed at N40,000.00 for the vacant plot and house. The respondent on diverse dates up to 26th April,1985 paid the sums totaling N17, 500.00. This in addition to the loan previously granted to the appellant brought the total figure up to N19,000.00.
The appellant moved out his brothers and or relations living in the house. He handed over the possession of the land and building to the respondent. The respondent to the knowledge of appellant let the vacant piece of land to his Church. The respondent with the appellant’s encouragement made structural alterations on the building. The appellant removed his things in the building some of which he sold to one Alhaji Adisa. The appellant was angry because the respondent could not pay the balance of N21,000.00 and the appellant disturbed the religious worship of the Church that occupied the vacant land. The appellant admitted that he did so because the respondent would not pay him the balance of N21,000.00.
On 25th November, 1985, the respondent sent N5,000.00 to the appellant in part payment of the outstanding balance of N21,000.00k. The appellant rejected this insisting that he wanted the balance of N21,000.00 paid in one bulk.
The respondent therefore counter-claimed as follows in paragraph 28 of his amended statement of defence and Counter-Claim thus:-
“28. The defendant counter claims as follows:-
(a) Specific performance of the said sale agreement between the plaintiff and the defendant. OR
in the alternative
(b) The total sum of N73, 000.00 made up as follows:-
i. The sum of N19, 000 being part payment made in partial satisfaction of the sale agreement at various dates.
ii. The sum of N10, 000 being expenses incurred in the renovation of the said building.
iii. The sum of N25, 000 expenses incurred on the temporary church building erected upon the said vacant land.
iv. Damages for the revocation of the sale agreement N19, 000”
Only the appellant testified in support of his claim.
The respondent testified in support of his claim and called 8 other witnesses.
After a review of evidence led in support of the case of both parties the learned trial Judge dismissed the appellant’s claims and granted in favour of the respondent a decree of specific performance on condition that the respondent pays the balance of the purchase money within 30 days from the date of judgment.
Dissatisfied with this judgment, the appellant has appealed to this court on many grounds of appeal.
In this court the following briefs of argument are filed and exchanged:
Appellant’s brief: respondent’s brief and appellant’s reply brief.
The appellant formulated the following as issues for determination in this appeal –
(a) Did the plaintiff sell his land and house to the defendant for N40, 000.00 of which the defendant paid N19, 000.00?
(b) If the above question is answered in the affirmative,the next question is whether it is an enforceable contract for which a decree of specific performance could be made?
The respondent adopted these issues for determination.
Rather than marshalling his argument under the above defined issues for determination, appellant’s counsel in his brief proceeded to proffer his argument under the respective grounds of appeal which makes the presentation of his case on appeal rather tedious.
This notwithstanding I will put his various arguments under appropriate compartments of issues for determination.
In the appellant’s brief learned counsel for the appellant abandoned ground 3 of the appeal which reads:-
“4.03 GROUND THREE
The learned trial Judge erred in law by ordering a specific performance of the alleged contract.
PARTICULARS OF ERROR
(a) The Order by the trial Judge that the plaintiff should execute a Deed transferring his interest in the land to the defendant is contrary to Section 5 of the Law Reform (contracts) Law Cap 66 of Lagos State.
(b) The order by the trial Judge that the plaintiff should execute a Deed transferring his interest in the land to the defendant is contrary to the Land Use Act.”
and therefore all arguments in the appellant’s brief that relate to this issue will be ignored except where any of the matters therein abandoned are repeated in another or in other grounds of appeal.
The argument in support of the appellant’s case in the brief of argument filed on his behalf which counsel adopted before us are that the decision reached by the learned trial Judge is contrary to the weight of evidence in that none of the witnesses called was an eye witness to the agreement for sale of the property nor the payment of the sum of N19,000.00 as part payment.
That the learned trial Judge placed undue weight on the evidence of D. W.2 and that there was no evidence before the court to support the holding that the appellant had sold his land and house to the respondent for N40,000.00 out of which the respondent had paid N19,000.00 leaving a balance of N21,000.00.
That the learned trial Judge having found that whatever contract there was between the parties did not comply with Section 5 of the Law Reform (contract) Law of Lagos State and there being no evidence to show that the respondent had made any payment in pursuance of the agreement should not have ordered specific performance.
That an order for specific performance cannot he made by the court in view of Sections 22,26 and 34 of the Land Use Act which prohibit the transfer of land without the consent of the Governor. That the learned trial Judge failed to provide a remedy in the event of failure of the respondent to comply with the order of payment of the balance of the purchase price within the period specified. He cited legal authorities to support his submission. He urged us to allow the appeal.
On his part both in the brief of argument filed on behalf of the respondent and orally before us learned counsel for the respondent contended that from the analysis of the evidence of the witnesses the learned trial Judge was right in coming to the conclusion that there was an agreement for sale of the landed property between the parties and that the respondent in fact paid the sum of N19, 000.00 in pursuance of the agreement leaving a balance of N21,000.00 to be paid.
That specific performance was rightly ordered on the principle that equity follows the law as well as the fact that this transaction falls within the exception clause in sub-section 3(c) of Section 5 of the Law Reform Contract Law, Cap.66 Laws of Lagos State.
That the application of the provisions of the Land Use Act relied upon by the appellant has not been breached and the said provisions of the Land Use Act do not preclude the learned trial Judge from ordering specific performance in the circumstances of this case.
He contended further that the appellant filing his notice of appeal before the expiration of the time given to the respondent to pay the balance of the purchase price is tantamount to appellant’s total rejection of the judgment and this precluded the respondent from making the payment.
He cited legal authorities in support of his submissions and urged us to dismiss the appeal.
Before going into the real issues for determination in this appeal I wish to dispose of an elementary matter and that is to say that the argument by the appellant’s counsel about incompetence of the learned trial Judge to order specific performance in view of the provisions of Sections 22, 26 and 34 of the Land Use Act has to be ignored as this argument is not covered by any of the grounds of appeal left after counsel for the appellant had abandoned ground 3 of the appeal as I pointed out at the early part of this judgment.
However for avoidance of doubt I reiterate my views as contained in my judgment in the case of Best (Nigeria) Ltd. v. Blackwood Hodge (Nigeria) Ltd. CA/L198/86 (unreported) delivered on 12th November, 1987 cited by learned counsel for the respondent that these provisions of the Land Use Act 1978 do not preclude the ordering of specific performance.
See also the decision of the Supreme Court in the case of Adimora v. Ajufo & Ors. (1988) 3 N.W.L.R. (Pt.80) 1 at p.16.
Now to the issues legitimately raised in this appeal.
In civil cases if a plaintiff satisfied the court on a preponderance of evidence otherwise referred to as balance of probability he or she will be entitled to judgment.
I will now examine the pleadings, the evidence led and the findings in this case in order to decide whether or not the respondent in this case was entitled to judgment having regard to the weight of evidence in support of his averments in his Statement of Claim.
The respondent gave evidence and called a witnesses to prove the averments in his Statement of Defence and counter-claim.
The following passages in the learned trial Judge’s judgment indicate how he arrived at some of the findings of fact in this case:
“On the evaluation of the evidence before the Court, it has been very easy for me to come to a conclusion on the facts. I find as a fact that the plaintiff not only sold his house and land to the defendant for N40, 000.00 but that the plaintiff handed the land and house over to (he defendant. I find as a fact that the plaintiff knew when the defendant let out the land to St. Stephen’s Church and that plaintiff actively encouraged the defendant to commence the renovation of the building sold to the defendant.”
xxx xxx xxx xxx xxx xxx
“The evidence of D.W.2 has been most eye-opening.
He said that the plaintiff sold to him the contents of the building so that he could deliver the building to the defendant. When there was a disagreement between plaintiff and the defendant arising from the failure of the defendant to pay the balance of N21, 000.00 D.W.2 tried to reconcile the parties. The plaintiff admitted to D.W.2 that he had been paid N19, 000.00. D.W.2 went with plaintiff and defendant to Abisiga in an effort to get defendant raise money to pay the plaintiff his balance. D.W.2 arranged a reconciliation meeting before D.W.6 Alhaji Busari. D.W.6 also testified that the plaintiff admitted that he had been paid N19,000.00 out of the purchase price.”
x x x x x x x x x x x x x x x x x x
“D.W.7 the police sergeant testified that on 20th March, 1985, a case of stealing roofing sheets was reported at Satellite Police Station and that on 21st March, 1985, he went with the plaintiff and the defendant to the scene of crime. This clearly shows that the plaintiff lied when he said he fell ill and went to his home town in Anambra State. The attempt of plaintiff no doubt was to show that he was not around and did not know when the defendant took possession of his land and house.”
x x x x x x x x x x x x x x x x x x
“The plaintiff in my finding is a crook who has attempted to take advantage of the friendship he had with the defendant. I believe that the plaintiff had not given the defendant receipt when the defendant demanded one on the excuse that he would hand over to the defendant the documents given him by his lessors when the defendant paid the full purchase price. The likelihood is that the defendant would not have agreed to collect his receipt later were it not for his friendship with and trust in plaintiff.”
x x x x x x x x x x x x x x x x x x
“The evidence called by the defendant against plaintiffs standpoint is simply overwhelming. The conclusion which is irresistible to be arrived at from the evidence and which I have arrived at is that the plaintiff sold his land and building now the subject matter of this suit to the defendant for N10, 000.00 and that the defendant paid the plaintiff N19,000.00 out of the purchase price leaving a balance of N21, 000.00.
See pp.131 to 133 of the printed record of proceedings.
I have read through the printed record of proceedings and I have found that the above quoted findings of fact are supported by the pleadings and evidence led at the trial of this case.
The learned trial Judge in addition has an added advantage of seeing and watching the demeanour of the witnesses who testified before him and I am of the view that he used this opportunity to an advantage. See Mattouk v. Massad 7 W.A.C.A. 91.
There is no doubt that an Appellate Court is entitled to disturb the findings of fact by a trial court where the trial court draws wrong conclusions from the evidence led before him or where his findings are perverse.
See Onowan & Ors. Iserhien (1976) 1 N.M.L.R. 263; (1976) 9-10 S.C. 95 and Lawal v. Dawodu & Ors. (1972) 8-9 S.C. 83 (1972) 1 All N.L.R. (Pt.2) p.270.
From the careful manner in which the learned trial Judge evaluated the facts of this case, he did a thorough work and his findings are not perverse.
What the learned trial Judge did in this case was to evaluate relevant and material evidence and decide the issues raised on the pleadings before him which is the right approach by a Judge in case for adjudication before a tribunal.
I am of the view that the learned trial Judge was right in holding that there was an agreement of sale followed by a part payment of N19,000.00 leaving a balance of N21,000.00 to be paid in the bargain. The evidence in support of these findings is overwhelming.
The answer to issue NO.1 above is therefore in the affirmative.
On the question of specific performance, the learned trial Judge having found as a fact that there was a valid contract in existence between the parties.
Section 5 of the Law Reform (contracts) Law, Cap.66 Laws of Lagos State comes up for consideration. It provides as follows:-
“5. (1) This section applies to –
(a) every contract for the sale of land;
(b) every contract to enter into any disposition of land being a disposition that is required by any enactment to be made by deed or instrument or in writing or to be proved in writing;
(c) every contract to enter into any mortgage or charge on land; and
(d) every contract by any person to answer to another person for the debt, default or liability of a third person.
(2) No contract to which this section applies shall be enforceable by action unless the contract or some memorandum or note in respect therefore is in writing and is signed by the party to be charged therewith or by some other person lawfully authorised by him.
(3) Nothing in this section shall –
(a) apply to any contract for the sale or other disposition of land made under customary law;
(b) apply to sale of land by order of any court of competent jurisdiction; and
(c) affect the operation of the law relating to part performance.
(4) The foregoing provisions of this section shall apply only to contracts made after the commencement of this law.
(5) For the purpose of this section –
“disposition” includes lease, assent, vesting declaration, vesting instrument, disclaimer, release and every other assurance of property by an instrument and also includes, where appropriate, a devise, bequest or appointment of property contained in a will;
“land” includes land of any tenure, and mines and minerals, whether or not held apart from the surface, buildings or parts of buildings (whether the division is horizontal, vertical or made in any other way) and other incorporeal hereditary and also includes a rent and other incorporeal hereditaments and an casement, right, privilege, or benefit in, over, or derived from land.
(6) This section is in substitution for section 4 of the Statute of Fraud, 1677, of the Parliament of England and that section shall cease to be in force except in respect of contracts made before the commencement of this Law.”
In this case the contract between the appellant and the respondent was never reduced in writing but the law will not allow the provisions of this law to be used as an instrument of fraud and so when there is part performance of a contract its specific performance will he enforced as if the terms of the contract have been reduced into writing. Section 5(3)(c) of the Law Reform (Contracts) Law above rccognises this doctrine and makes provision for same.
I am of the view that that section of the law supports the action of the learned trial Judge in granting specific performance on the facts of this case.
Issue No.2 is also answered in the affirmative.
The final issue raised in this appeal which was not formulated as an issue although raised as a ground of appeal was that the learned trial Judge failed to provide a remedy in the event of the respondent not complying with the order that he should pay the balance of purchase price within specified time. My view is that this complaint is untenable in the circumstances of this case.
In the first place there are specific legal remedies open to a person who is adjudged entitled to a specific sum of money to enforce his right and recover the said amount.
The position in this case was that the adjudged amount was to be paid within 30 days.
Before the due date, the appellant appealed against the judgment and having regard to the grounds of appeal, his complaints amounted to a total rejection of the judgment including the part dealing with the payment of the balance of purchase price – How can the respondent proceed to pay when by his action the appellant has expressly rejected the basis upon which the payment would have been made?
On the whole, I am of the view that the learned trial judge made a correct order in the circumstances of this case.
The appeal is dismissed.
The judgment of Oguntade, J. (as he then was) delivered on 29th July, 1987 is hereby affirmed.
I award N450.00 costs in favour of the respondent.
I also make the following orders:
(i) The respondent is to pay to the appellant the sum of N21, 000.00 (Twenty-one Thousand Naira) being the balance of the purchase price for the land and house on or before 30 days from the date of this judgment.
(ii) If the respondent pays the said money within the specified period, the appellant shall execute in favour of the respondent a deed of assignment to the respondent of all interests and rights of the appellant in the land and building which is the subject-matter of this appeal.
This is to be done within 30 days after the respondent shall have paid the said N21, 000.00 balance purchase price to the appellant.
Other Citations: (1989) LCN/0077(CA)
