Engr. Adebayo Oyewale V. Alhaji Kola Lawal (2008)
LawGlobal-Hub Lead Judgment Report
JOHN AFOLABI FABIYI, J.C.A.
This is an appeal against the judgment of Hon. Justice J. O. Ige delivered on 31st January, 2003 while sitting at the High Court of Justice, Ibadan, Oyo State of Nigeria.
The heads of claim set out at the lower court by the plaintiff, who is the respondent herein; against the defendant thereat and appellant in this court appear legion. As contained in paragraph 22(a)-(e) of the further amended statement of claim dated 7th May, 2002, the plaintiffs claims read as follows:-
“22. Whereof the plaintiff claims against the defendant as follows:-
a. Possession of the piece or parcel of land situate, lying and being at Plot 9 Block II off T. A. Adeniran Layout, near Apata Kekere village, off Oyo Road, Ibadan registered as No. II at page 11 in volume 2271 of the Lands Registry in the office at Ibadan together with the building out-houses thereon and appurtenances thereto which property was absolutely assigned to the plaintiff by the defendant on 25th October, 1994;
b. Possession of the piece or parcel of land situate near Apata Kekere village, off Oyo road, Ibadan registered as No. 55 at page 55 in volume 2032 of the Lands Registry in the office at Ibadan together with the building out-houses thereon and all appurtenances thereto which property was absolutely assigned to the plaintiff by the defendant on 25th October, 1994;
c. The sum of N32, 000.00k being rent unlawfully collected by the defendant on the properties described at (a) and (b) above for the months of November and December, 1994 and January and February, 1995 i.e. 8 flats at N1,000.00k each per month;
d. The sum of N6,400.00k being rent unlawfully collected by the defendant on the 2 boys quarters on the said properties described at (a) and (b) above for the months of November and December, 1994; January and February, 1995;
e. Mesne profit at the rate of N9,600.00k per month on the said properties with effect from March, 1995 until possession is given to the plaintiff by the defendant or judgment is delivered whichever is earlier.”
Pleadings were filed and exchanged by the parties who had cause to amend same. Parties testified and called witnesses. Series of exhibits galore were tendered and marked Exhibits A-Q respectively in a bid to prove that a contract of sale of the stated properties existed between the parties and that the defendant should perfect his own side of the bargain.
For a proper appreciation of the issues canvassed in this appeal, it is apt to recapitulate the facts garnered by the learned trial judge; albeit briefly.
The plaintiff’s case was that the defendant persuaded him to purchase the houses, subject matter of the suit, while the defendant desperately needed money. The plaintiff discovered after a search at the Deeds Registry in Ibadan that the title Deeds were encumbered. The defendant requested for a loan of N8,000 to effect the release of the title documents and the plaintiff obliged him. The release of the documents was secured by the defendant.
The plaintiff observed that one of the title documents bore the name of one Madam Comfort Sogunro. The defendant explained that she was his cousin in whose name he purchased the land but that he would obtain a Power of Attorney from her to enable him effectively sell the twin houses. The defendant procured the Power of Attorney and surrendered it together with all other title documents covering the houses to the plaintiff. The agreed price of the houses was provided by the plaintiff and the defendant executed documents – Exhibits ‘A’ & ‘A1’ absolutely assigning the houses to the plaintiff. The defendant executed Exhibit ‘A’ in his beneficial right while he executed Exhibit ‘A1’ as attorney of Madam Comfort Sogunro his cousin in whose name he purchased the land. The defendant collected Bank draft Issues by the plaintiff in his favour and undertook to get the existing tenants out of the houses.
The defendant later desired to get the contract rescinded as he said he had a new offer for twice the agreed purchase price. The plaintiff turned same down as he maintained that he obtained the purchase price through a bank loan. The defendant wrote a petition, Exhibit ‘G’ to the Commissioner of police for assistance to recover all the surrendered sale documents from the plaintiff to no avail. The defendant maintained that he was drugged by the plaintiff when he signed the sale documents in the plaintiff’s office. The defendant again said he signed the documents on his sick bed in his house.
The defendant is still collecting rent on the houses on the ground that he had not cashed the Bank draft eight months after collecting same.
The defendant, on his part, maintained that he never sold the houses in dispute to the plaintiff. He said he only deposited the title Deeds of the property with the plaintiff as security for the repayment of the loan of N48, 500.00 he took from the plaintiff. He asserted that the documents – Exhibits A and A1 which the plaintiff claimed that he signed as documents of assignment were signed when he was drugged by the plaintiff and were not registered. The defendant refused to cash the Bank draft issued to him in consideration for the sale transaction.
The learned trial judge was properly addressed by the learned counsel for the parties. In his well considered judgment, the learned trial judge applied the requisite law as canvassed to the facts of the matter. He found that the plaintiff’s claims succeeded and entered judgment in his favour against the defendant. He orders, inter alia, that possession of the two landed properties in dispute be given up on or before 28th December, 2003.
The defendant felt unhappy with the stance ably posed by the learned trial judge and has appealed to this court. The original Notice of Appeal filed on 21st February, 2003 was accompanied by five (5) grounds of appeal. By an order of this court made on 9-11-05, the appellant was granted leave to amend his grounds of appeal by filing five additional grounds of appeal.
The relief sought from this court is an order allowing the appeal and setting aside the judgment of the High Court.
On behalf of the appellant, three issues were formulated for a due determination of this appeal. They read as follows:-
“3.01 Whether the learned trial judge was right in accepting and relying on exhibits A & A1 as evidence of title of the respondent to the property in dispute when they are inadmissible evidence of title.
3.02. Whether the learned trial judge was right in treating the contract for the sale of the property in dispute between the respondent and the appellant as fully performed and executed when there was evidence before the learned trial judge from the appellant that he was not ready to perform the contract by denouncing the contract as well as not collecting the purchase price of the sale agreement.
3.03 Whether the learned trial judge was right on the evidence placed before him in granting the claims of the plaintiff/respondent as claimed when the respondent’s evidence is at variance with his pleadings.”
On behalf of the respondent, three issues were also distilled for determination. They read as follows:
“3.01 Whether a valid and enforceable contract of sale of the houses had not been concluded between the parties particularly when offer had been unconditional (sic) accepted and consideration had moved from the purchaser (plaintiff) to the vendor.
3.02 Whether the judgment of the trial court deserves to be set aside (sic) the Honourable judge had made flawless findings of fact having meticulously evaluated the totality of the evidence which were not In conflict with any law of admissible evidence; not perverse or amount to a miscarriage of justice.
3.03 Whether the trial court was ever in error by awarding possession to the plaintiff only on the ground that the plaintiff claimed possession and not specific performance.”
Issue 3.02 couched on behalf of the appellant is similar to issue 3.01 distilled for determination by the respondent. In sum, it is whether or not a valid and enforceable contract of sale of the houses had been concluded between the parties.
On behalf of the appellant, it was submitted that there is no enforceable contract of sale between the parties as consideration did not pass from the buyer to the seller. The appellant maintained that he did not cash the Bank Draft – Exhibit ‘F’ given to him by the respondent.
On behalf of the respondent, it was submitted that a contract of sale exists between the parties who executed Exhibits ‘A’ and ‘A1’ upon payment of the agreed price contained in the Bank Draft – Exhibit ‘F’. Learned counsel for the respondent observed that as a follow up the appellant also delivered to the respondent other title documents, to wit: Exhibits H, L and M.
Learned counsel submitted that when an offer has been clearly accepted by an offeree and same is followed by consideration, the parties are bound by the agreement and liable for their obligations in the contract. He referred to the cases of Bioku v. Light Machine (1986) 5 NWLR (Pt. 39) 42; Ude v. Osuji (1990) 5 NWLR (Pt. 151) 488; Isokwe Motors (Nig.) Ltd. v. UBN Ltd. (1996) 9 NWLR (Pt. 471) 129.
Learned counsel observed that the appellant admitted that he signed the documents of sale and the delivery to the respondent of the related title documents. He submitted that the contract is binding on the appellant and he is bound to fulfill his obligations under the contract of sale to surrender possession of the properties to the respondent.
At this point, it is desirable to explore briefly the law of contract which, to my mind, forms the bed-rock of this appeal.
In Black’s Law Dictionary Fifth Edition at pages 291-292, contract is defined as an agreement between two or more persons which creates an obligation to do or not to do a particular thing. Its essentials are competent parties, subject matter, offer and acceptance followed by a legal consideration, mutuality of agreement and mutuality of obligation. See Lamoureux v. Burrillvile Racing Ass’n 91 R.I. 94; 161 A.2d 213, 215.
Contract is the writing which contains the agreement of parties, with the terms and conditions, and which serves as a proof of the obligation.
The appellant herein made a serious issue as to whether there was consideration in the transaction initiated by him. What then is consideration? At page 277 of Black’s Law Dictionary, consideration is defined as the inducement to a contract; the reason or material cause for a contract; some right, interest, profit or benefit accruing to one party or some forbearance, detriment, loss or responsibility given, suffered, or undertaken by the other. Richman v. Brookhaven Servicing Corp. 80 Misc. 2d 563; 363 N.Y.S. 2d. 731, 733.
Perhaps I should still recall the definition of consideration by the learned author of ‘Chitty on Contracts, General Principles’ 25th Edition at page 100 para. 144. Therein, consideration is defined as:-
“Something of value which must be given, some detriment to the promises or some benefit to the promisor. Usually these detriment and benefit are merely the same thing 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.”
It is extant in the record of appeal that the appellant desired to sell his houses. He instructed P.W.4, an auctioneer to sell his house. The letter of instruction is Exhibit ‘D’. P.W.4 got the houses sold to the respondent on 25-10-94 for an agreed price of N1.1 million. On the same date, two Deeds of Assignment to wit: Exhibits ‘A’ & ‘A1’ were signed by the parties. The respondent issued Bank Draft – Exhibit ‘F’ as payment in consideration for the agreement which PW4 said he gave to the appellant. The appellant also delivered title documents to wit: Exhibits HI, L and M to the respondent. The appellant kept the Bank Draft – Exhibit ‘F’ for about 8 months and thereafter desired to rescind the contract on the ground that he got another buyer who was ready to pay twice the amount earlier bargained with the respondent. The appellant begged respondent’s friends to appeal to him to no avail. The respondent maintained that he got the money with which he paid for the houses through a loan from a bank with huge interest.
The appellant thereafter embarked upon gimmicks so as to have his title documents retrieved from the respondent. The appellant said he was drugged when he signed Exhibits A & AI in respondent’s office. He changed and said he signed the documents on his side bed in his house. He wrote a petition – Exhibit ‘G’ to the Commissioner of Police to assist him; all to no avail.
In my considered opinion, it is glaring that, ex facie, a contract of sale exists between the appellant and the respondent. The appellant initiated the sale of his property through P.W.4 and put his hand on Exhibits A & A1, Deeds of Assignment, respectively. It beats one’s imagination that the appellant decided to engage upon pranks. The appellant cannot deny the obvious. Through PW4, he offered to sell his property. PW4 approached the respondent who accepted to buy same. The respondent furnished consideration by paying the agreed price of N1.1 million vide the Bank Draft marked Exhibit ‘F’ which the appellant kept for a period of about eight (8) months and started to behave in an unusual manner. That was not good enough. To my mind the contract, on its face, is binding on the appellant and he is bound to fulfill his obligations therein contained. Refer to Francis Anaeze V. Ude Anyaso (1993) 5 NWLR (Pt. 291) 1. He cannot be allowed to unilaterally repudiate the contract which was initiated by him.
On behalf of the appellant, learned counsel observed that Exhibits A & A1 are registrable documents. He maintained that since they were not registered, same contravened the provisions of section 16 of Land Instrument Registration Law of Oyo State and are therefore void and of no effect. He felt that they are inadmissible as evidence of title. He cited the case of Etim v. Ekpe (1983) 3 SC 12 at 36-38.
Learned counsel for the respondent urged us to reject the appellant’s argument as non-registration does not invalidate a document. It proves the receipt of payment. He referred to Ezenwa V. Oko (1999) 14 NWLR (Pt. 637) 95 at 97.
I wish to refer to the case of Okoye V. Dumez Nig. Ltd. (1985) 1 NWLR (Pt. 4) 783 at 790. Therein, it was pronounced that a registrable instrument which has not been registered is admissible to support a claim for specific performance or to prove equitable interest and payment of purchase money or interest. See also Fakoya v. St. Paul’s Church Shagamu (1966) 1 All NLR 74: Oni v. Arimoro (1973) 3 S.C. 163; Ogunbambi v. Abowaba (1951) 13 WACA 222.
It must be pointed out to the appellant that the claim of the respondent was basically one for specific performance. He wants to have possession of the properly sold out to him by the appellant and over which he has equitable interest. The argument in respect of non-registration was to no avail as it fell flat. The appellant cannot go round his obligation through such a rather mundane ploy and tactical movement.
The main defence of the appellant at the lower court was that the Governor’s consent was not sought and obtained prior to the signing of Exhibits A and A1. That was the grouse of the appellant at the lower court. The learned trial Judge exposed the futility of same when he referred to Francis Aneze V. Ude Anyaso (supra) at page 39. Therein, Karibi-Whyte, JSC pronounced as follows:-
“I do not consider the argument by Chief Ude Chukwu that specific performance cannot be made because the lessor, in this case, the respondent, had not applied for consent tenable. The principle is and has always been that where there is a valid enforceable contract between the parties relating to transaction in respect of land, and one of the parties defaults in performance of his part, the other contracting party who has performed his part has the option either to seek the enforcement of the performance of the contract, or to claim damages for its breach. This being an action for recovery of possession in respect of sale of land, damages cannot be an adequate remedy. The appellant having completely performed his part of the contract he is entitled to have the respondent perform his part.”
The appellant in this appeal ought to demonstrate consistency in prosecuting his case at the trial as well as in this court. See Ajide v. Kelani (1985) 3 NWLR (Pt. 12) 248. As a follow up, I need to point it out to the appellant that he must perform his own part of the contract of sale as depicted in Exhibits A & A1. There is no way by which he can dance round it. The learned trial judge rightly ordered that he should give possession of the property to the respondent. That, clearly, is an order for specific performance. It will be an eye wash for me to find otherwise as the respondent is, no doubt, entitled to the order which is warranted from the prevailing circumstance of the transaction which was initiated by the appellant himself.
Let me make one point more and I shall be done. The appellant, whose duty it was to obtain the Governor’s consent, failed to so act. And yet, he had the temerity to say that the transaction is tainted with illegality as according to him, Exhibits A & A1 which he signed are void.
I am at one with the learned trial judge that it is the highest degree of dishonesty for a party who has knowledge or is presumed to have knowledge of the existence of illegality in a transaction to enter into it and thereafter label it as illegal and raise illegality as a defence. It is both morally and legally despicable. See Emmanuel O. Adedeji v. National Bank of Nig. Ltd. (1989) 1 NWLR (Pt. 96) 212 at 226-227; Oyagoke v. Iriguna (2002) 15 NWLR (Pt. 760) 417.
In any event since Exhibits A & A1 are conditional assignments where the appellant covenanted that – The assignor hereby covenants to execute a proper deed of assignment in favour of the assignee whenever he is being called upon to do so, the respondent is covered.
I am unable to pinpoint in any manner how the learned trial judge failed to properly appraise the evidence of the parties. He considered the evidence properly and gave due probative value to same. He adequately applied the law to the facts and called off the appellant’s bluff. I am at one with him. The appellant merely attempted to cry wolf for no just cause. A culprit should not be allowed to turn himself into a saint. If same is allowed, business transaction as practiced in the business circle will be in jeopardy. I am unable to see my way clear in setting aside the findings of fact made by the learned trial judge as was urged on behalf of the appellant.
The appellant is constructively holding out on the property after signing Exhibits A & A1 on his own volition. The order made by the learned trial judge that possession be given up by the appellant on or before 28-12-03 is clearly warranted. In my view that amounts to an order for specific performance. It stands inviolate; hitherto.
In sum, I resolve all the three issues against the appellant and in favour of the respondent. The judgment of the learned trial judge delivered on 31st January, 2003 is hereby affirmed as the appeal is dismissed. The appellant shall pay N30, 000 costs to the respondent.
Other Citations: (2008)LCN/2801(CA)
