Florence Achonu V. Oladipo Okuwobi (2017)

LAWGLOBAL HUB Lead Judgment Report

PAUL ADAMU GALINJE, J.S.C.

By an amended statement of claim dated and filed on the 29th day of October, 1993, the Appellant herein, who was the plaintiff at the High Court of Lagos State, claimed against the Respondent the following reliefs:-

“1. Specific performance of the contract for the sale of the property situated at and being (sic at) No. 65 Bode Thomas Street, Surulere, Lagos by executing and doing in favour of the plaintiff all necessary acts, deeds, forms and things for the due vesting and registration of ownership of the said property in the plaintiff and obtaining and delivering to the plaintiff a valid copy of his tax clearance certificate and of all other documents necessary for supporting an application for change of ownership in favour of the Plaintiff.

2. Mesne profits in the sum of N150,000.00 per annum with effect from 1st August, 1992 in respect of the ground floor flat at 65, Bode Thomas Street, Surulere, Lagos State until possession is given up.”

This amended statement of claim is at pages 67 – 75 of the record of this appeal. By his amended statement of defence

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dated 15th February, 1994 and filed on the 17th February, 1994, the Respondent as defendant at the trial Court, denied liability. Issues having been joined, the case proceeded to trial. At the end of the trial and addresses by learned counsel for the respective parties, the trial Court in a reserved and considered judgment delivered on the 13th February, 1997 granted to the Appellant all the reliefs she sought. The Respondent herein was thoroughly dissatisfied with the decision of the trial Court. Being aggrieved, he appealed to the Court of Appeal, Lagos Division where the decision of the Lagos State High Court was reversed in favour of the Respondent in a reserved and considered judgment delivered on the 14th July, 2005. The present appeal is against the decision of the Court of Appeal Lagos. The Appellant’s notice of appeal at pages 326 – 329 of the printed record of this appeal, dated 7th October, 2005 contains five grounds of appeal.

Parties filed and exchanged briefs of argument. MR. DOTUN ODUWOBI, learned counsel for the Appellant distilled three issues for determination of this appeal as follows:-

“i. Whether Ground (vi) contained in the notice

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of appeal filed by the defendant before the Court of Appeal ought not to have been struck out for want of competence.

ii. Whether the Court of Appeal was correct in its conclusion that the defendant’s tax clearance certificate had not been made an issue between the parties and whether the production of the said certificate by the defendant was not crucial or significant to the performance of the sale agreement.

iii. Whether the Court of Appeal was correct in treating time as being of the essence of the agreement between the parties. If not, then whether there was justifiable basis for the learned justices of appeal to have quashed the lower Court’s order for specific performance.”

MR. ADEWUMI R. FATUNDE, learned counsel for the Respondent issued a preliminary objection to the competence of the 2nd, 4th and 5th Grounds of Appeal on the ground that they were filed contrary to the provisions of Section 233(2) and (3) of the 1999 Constitution of the Federal Republic of Nigeria. Learned counsel argued the preliminary objection at pages 7 – 8 of the Respondent’s brief of argument, and thereafter he formulated three issues for determination of this

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appeal as follows:-

1. Whether Ground (vi) contained it the notice of appeal filed by the defendant before the Court of Appeal ought not to have been struck out for want of competence.
2. Whether the Court of Appeal was correct in its conclusion that the defendant’s tax clearance certificate had not been made an issue between the parties and whether the production of the said certificate by the defendant was not crucial or significant to the performance of the sale agreement.
3. Whether the Court of Appeal was correct in treating time as being of the essence of the agreement between the parties. If not, then whether there was justifiable basis for the learned justices of appeal to have quashed the lower Court’s order for specific performance.”

Learned counsel for the Appellant filed a reply brief on 3rd September, 2007. I will consider it in the course of this judgment. The law is settled beyond which there is no argument that where a preliminary objection is issued challenging the competence of an appeal, same shall be resolved before considering the appeal. This is so because the labour of hearing the appeal will be in vain if at the end of

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the day the appeal is found to be incompetent. See Onyema & Ors v Egbuchulam (1996) 5 NWLR (Pt. 448) 224. I will therefore consider the preliminary objection to the competence of the 2nd, 4th and 5th grounds of appeal first.

Learned counsel for the Respondent submitted that the 2nd, 4th and 5th grounds of appeal are of mixed law and facts as such the Appellant’s failure to seek leave of either the lower Court or this Court to file and argue them, is fatal to his appeal. According to the learned counsel, these grounds are incompetent and should not be allowed to stand. In aid, learned counsel cited Briggs v Chief Lands Officer Rivers State (2005) ALL FWLR (Pt. 268) 1626. In a further argument, learned counsel urged this Court to hold that all the issues formulated from the grounds aforesaid and the argument in support thereof are also incompetent and are liable to be struck out as well.

In aid, the authorities in Ehuwa v Ondo State IEC (2006) 18 NWLR (Pt. 1012) 544 at 572 – 573 Paragraphs G-B, Ministry of Benue State v Ulegede (2001) 51 WRMI at 26 – 27 lines 40 – 25 were cited. Learned counsel on the authority of UAC Ltd v Macfoy (1962) AC 152,

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(1961) 3 ALL ER 1160 urged this Court to strike out the 2nd, 4th and 5th grounds of appeal as well as the issues formulated therefrom and the argument of counsel connected thereto.

In reply, learned counsel for the Appellant argued that the 2nd, 4th and 5th grounds of appeal did not complain about specific findings of facts by the lower Court, but the complaints therein are directed to the law applicable to uncontested facts which are already settled. This being so, learned counsel insists that the said 2nd, 4th and 5th grounds of appeal are grounds of law. In aid, learned counsel cited Bamgboye v University of Ilorin (2001) FWLR (Pt. 26) 484 at 491.

The grounds of appeal complained of are hereunder reproduced for clarity without their particulars as follows:-

“ii. The learned justices of appeal erred in law when they held and concluded that “the Respondent’s averment at Paragraph 8 in respect of tax clearance had not been made an issue between parties” and that “she did confirm the non-significance of the same tax clearance certificate”.

iv. The learned justices of appeal erred in law when they held that time was of the essence of the

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agreement and that the Respondent had undertaken to pay the balance of the price within one week of 3rd July, 1992.

v. The learned justices of appeal erred in law when they held that the Respondent was not ready and willing to perform the contact and that there wasn’t sufficient evidence on which the order of specific performance could have been made in her favour.”

A close perusal of the three grounds reproduced above shows that the issues of facts complained of have to do with whether tax clearance was made an issue between the parties, or whether time was of the essence or whether there wasn’t sufficient evidence on which the order of specific performance could have been made in favour of the Appellant. A ground of appeal does not qualify as a ground of law simply on the basis of its been so called. The determining factor in assessing whether or not a ground of appeal is one of law or of mixed law and facts or of facts alone is the complaint for which the ground had been employed. The type of complaint an appellant set out to make is invariably deciphered from an examination of the ground itself. Where the ground of appeal is based on a complaint

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of errors emanating from a conclusion or undisputed facts, the ground is a ground of law. If the errors complained of are founded on disputed facts and by the complaint, the correctness of the ascertained facts is being challenged, the ground is one of mixed law and fact. Where the trial Court is asked to exercise its discretion and the complaint in the ground of appeal relates to the exercise of the Court’s discretionary powers, the ground would be one of mixed law and fact. In the instant case, the facts disclosed in the disputed grounds of appeal are not in contention. They are no longer in dispute as they have been settled. What, is in dispute is the law applicable to those sets of facts. I am of the firm view that the three grounds, subject of the objection are grounds of law that do not require the leave of this Court. See UBA Ltd v Stahibau GMBH (1989) 3 NWLR (Pt. 110) 374; ACB Ltd v Obmiami Brick & Stone Ltd (1993) 5 NWLR (Pt. 294) 399; Metal Construction (W.A) Ltd v Migliore (1990) 1 NWLR (Pt. 126) 299; Ifediorah v Ume (1988) 2 NWLR (Pt. 74) 5; Ogbechie v Onochie (1986) 2 NWLR (Pt. 23) 484; Nwadike v Ibekwe (1987) 4 NWLR (Pt. 67) 718.

For the

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reasons I have set out herein above, I find the preliminary objection unmeritorious and same shall be, and it is hereby overruled.

On the main appeal, learned counsel for the Respondent merely copied the issues formulated by the learned appellant’s counsel. Since the issues formulated by learned counsel for respective parties are the same, I will adopt those issues formulated on behalf of the Appellant in the determination of this appeal. Before I proceed to do that, I will like to set out in brief the facts of this case as found by the lower Court as follows:-

Mr. Oladipo Okuwobi, the Respondent in this appeal offered his property located at No. 65 Bode Thomas Street, Surulere, Lagos to the Appellant herein to buy at the price of N1,500,000.00. The Appellant accepted the offer and made part payment of the purchase price in two installments of N500,000.00 and N200,000.00 and the two receipts evidencing these payments were issued on 3rd June, 1992. The Appellant promised to liquidate the balance of N800,000.00 within one week and when she failed to honour the promise, the Respondent instructed his solicitors to write to the Appellant informing her

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that he was no longer selling the property on the ground that the project for which he needed the money from the sale of the property had been frustrated by the Appellant’s inability to pay the purchase price within the stipulated time agreed to.

Learned counsel for the Respondent submitted in respect of the 1st issue for determination of this appeal that the lower Court was wrong when it failed to strike out the 6th ground of appeal before it. According to the learned counsel, the said ground 6 complained about an error of law and fact at the same time as such it is incompetent and ought not to have been spared. Learned counsel cited in aid the authorities in llorin v Oyalana (2001) FWLR (Pt. 83) 2193 at 2203 and Anikwe v Okereke (1996) 6 NWLR (Pt. 452) 60 and submitted that it was on the basis of the matters contended in relation to this incompetent ground of appeal that the Respondent’s appeal was found to be meritorious by the lower Court.

For the Respondent it is argued that although the 6th ground of appeal was couched to combine error of law and error of fact which the Courts have held to be incompetent, nevertheless, the application of

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such rules should not be reduced to a mere matter of technicality whereby the Court will look at the form rather than the substance. Learned counsel made submissions on the purpose of setting out grounds of appeal and contended that the only area where the grounds of appeal will not be acted upon is only when it is vague or general in terms. In support of this argument, learned counsel cited Aderounmu v Olowu (2000) SCNJ 180 (2001) 4 NWLR (Pt. 652) 253 at 272 Paragraphs a- e; Jikamshi v Matazu (2004) ALL FWLR (Pt. 230) 1077 at 1079. In a further argument, learned counsel submitted that this Court should do substantial justice in this matter without adherence to the rules of procedural technicalities, as era of technical justice belongs to the past. In aid, learned counsel cited the following authorities – Inyang v Ebong (2002) FWLR (Pt. 125) 703 at 714; Aqua Agro Industries Nig. Ltd v Sagrani (1999) 1 NWLR (Pt. 585) 85; UBN Plc v Sepok Nig Ltd (1998) 12 NWLR (Pt. 578) 479 and Jubrin v N.E.P.A (2003) FWLR (Pt. 178) 1092 at 1095.

The Appellant herein was the Respondent at the lower Court. In that Court, he submitted the following issues for determination of the

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appeal thus:-

1. Whether there was no valid contract of sale of the property (the subject matter of this appeal) between the Appellant and the Respondent upon which specific performance could be ordered.
2. Whether Exhibit 1 was not rightly admitted in evidence having regard to Section 5(3) Law Reform (Contracts) Act 1961 applicable to Lagos State.
3. Whether there was no sufficient evidence to sustain the judgment of the Honourable Court below.

From the issues reproduced herein above, which issues were canvassed at the lower Court, the Appellant did not raise any argument in connection with the competence of any of the grounds of appeal, even though he was aware of the way the 6th ground of appeal was couched. The general rule adopted in this Court is that an appellant will not be allowed to raise on appeal to this Court questions or issues which were not raised or considered by the lower Court, but where the questions or issues involve substantial points of law substantive or procedural and it is plain that no further evidence could have been adduced which would affect the decision of them, the Court will allow the questions to be raised

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and the points taken so as to prevent an obvious miscarriage of justice. See K. Apene v Barclays Bank of Nigeria & Anor (1977) 11 NSCC 29; Shonekan v Smith (1964) ALL NLR 168 at 173; Stool of Abinabina v Chief Kojo Eyinadu (1953) A.C 209 at 215. One of the exceptions to this general rule is where the questions or issues in contention touch on the jurisdiction of the lower Court, a party can raise them even for the 1st time without seeking the leave of this Court.

The Appellant’s complaint is that the 6th ground of appeal which was filed by the Respondent at the lower Court combines error of law and facts and that there have been several decisions of this Court in which grounds that combine error of law and facts have been declared incompetent. In support, learned counsel cited Obijuru v Anokwuru (2002) FWLR (Pt. 1114) 567 at 568; Nwadike v Ibekwe (1987) 4 NWLR (Pt.67) 718. Idaayar v Tisidam (1995) 2 NWLR (Pt. 377) 359: Loke v IGP (1997) 11 NWLR (Pt. 527) 57; Rotimi v Fatorji (1996) 6 NWLR (Pt. 606) 305.

In Obijuru v Anokwuru (supra) at Page 573 Paragraph E the Court of Appeal relying on the authority in Nwadike v Ibekwe (supra) held:-

“A ground

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of appeal cannot allege an error in law and a misdirection on the facts at the same time. Where it does so, it is incompetent and is liable to being struck out by the Court.”

Though persuasive, the Court of Appeal in Obijulu v Anokwuru (supra) followed the decision of this Court in Nwadike v Ibekwe (supra) where this Court per Nnaemeka-Agu JSC held at page 744 Paragraphs F-G as follows:

“Let me pause here to observe that a ground of appeal cannot be an error in law and a misdirection at the same time, as the appellant’s grounds clearly postulate. By their very nature one ground of appeal cannot be the two. For the word “misdirection” originated from the legal and constitutional right of every party to a trial by jury to have the case which he had made either in pursuit or in defence, fairly submitted to the consideration of the Tribunal.”

Misdirection is defined by Black’s Law Dictionary 7th Edition as an erroneous jury instruction that may be grounds for reversing a verdict, while fact is defined by the same dictionary at page 610 as something that actually exists; an aspect of reality. An actual or alleged event or circumstance as distinguished

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from its legal effect, consequence or interpretation.

From the definitions herein, a misdirection is certainly not the same thing as error of fact. Error of law and error of fact where particulars are provided, cannot render a ground of appeal incompetent where the particulars are sufficiently provided. The 6th ground of appeal before the lower Court reads thus:-

”The learned trial judge erred in facts and in law when he held that time was not of the essence of the contract sought to be specifically performed.” This ground was properly supported by particulars, as such I do not think it is incompetent.

The Appellant did not challenge the 6th ground of appeal at the lower Court. He can therefore not raise here a question which was not raised, or considered by the lower Court without leave of either the lower Court or this Court. See Araka v Ejeagwu (2000) 15 NWLR (Pt. 692) 684; Oshatoba v Olujitan (2000) 5 NWLR (Pt. 655) 159. There is no evidence that leave of this Court was sought and obtained before the 1st ground of appeal was filed. If there is any ground to be struck out, it is the first ground of appeal before this Court.

Learned counsel for

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the Appellant cannot urge that the 6th ground of appeal at the lower Court challenged the jurisdiction of that Court and therefore the issue canvassed by the 1st ground of appeal here can be raised at any stage and even in this Court for the first time without seeking for and obtaining leave of either the lower Court or this Court. Courts jurisdiction simply means the power and authority of the Court, recognized by law to adjudicate over a controversy. Generally there are two types of jurisdiction. These are:-

1. Jurisdiction as a matter of procedural law.
2. Jurisdiction as a matter of substantive law.

While a litigant may submit to a procedural jurisdiction, he cannot confer jurisdiction on a Court where the Constitution or statute or any provision of the common law limits the Court’s jurisdiction. See Obiuweubi v CBN (2011) 7 NWLR (Pt. 1247) 465. Courts are creatures of statutes and it is the statute that creates a particular Court that confers on it, its jurisdiction and this jurisdiction can only be extended by the legislature.

However, where the jurisdiction of a Court is a matter of procedural law, failure to comply with certain

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aspect of the procedure is a mere irregularity which does not render the action incompetent. The failure of the Appellant to object to the 6th ground of appeal at the lower Court amounted to a waiver, since the issue complained of by 6th ground of appeal is a procedural irregularity which does not render the ground of appeal, subject matter of the Appellant’s complaint incompetent.

Finally, the essence of the grounds of appeal is to give sufficient notice to the adverse party of the nature of the appellant’s compliant that such adverse party will be confronted with in Court. Once the notice is passed and the adverse party reacts to it without any complaint, it means the notice is clear and well understood. In Aderounmu v Olowu (2000) SCNJ 180, (2001) 4 NWLR (Pt.652) 253 at 272 Paragraph a-e, which was cited and relied upon, by learned counsel for the Respondent, this Court per Ayoola JSC said:

“The rules of our appellate procedure relating to formulation of grounds of appeal are primarily designed to ensure fairness to the other side. The application of such rules should not be reduced to a matter of mere technicality whereby the Court will look at

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the form rather than the substance. The prime purpose of the rules of appellate procedure, both in this Court and in the Court of Appeal, that the Appellant shall file a notice of appeal which set forth concisely the grounds which he intends to rely upon on the appeal and that such grounds should not be vague or general in terms and must disclose a reasonable ground of appeal, is to give sufficient notice, an information to the other side of nature of the complaint of the Appellant and consequently of the issues that are likely to arise on the appeal. Any ground of appeal that satisfies that purpose should not be struck out notwithstanding, that it did not conform to a particular form.”

Apart from the fact that the Appellant took steps after becoming aware of the regularity by filing his brief of argument at the lower Court, he also subjected himself to the hearing of the appeal which culminated into the judgment against which this appeal lies Order 20 Rule 5 (1) of the Court of Appeal Rules 2011, provides as follows:

“An application to strike out or set aside for non-compliance with these rules, of any other irregularity arising from the Rules of

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Practice and Procedure in this Court, any proceedings or any document, judgment or Order therein shall only be entertained by the Court if it is made within a reasonable time and before the party applying has taken any fresh step after becoming aware of the irregularity.”

The lower Court was therefore right when it did not strike out the 6th ground of appeal before it. The first issue is therefore resolved against the Appellant and in favour of the Respondent.

On the 2nd issue for determination of this appeal, learned Appellant’s counsel submitted forcefully that the lower Court is wrong in its conclusion that the Respondent’s tax clearance certificate was not made an issue between the parties at the trial Court. Learned counsel made reference to Paragraphs 8, 9 and 14 of the Appellant’s amended statement of claim and contended that it was the Respondent’s failure to produce the tax clearance certificate that led to the frustration of the contract between the parties. According to the learned counsel, the Respondent joined issues with the Appellant through Paragraphs 15, 16 and 17 of the statement of defence where Paragraphs 9, 10 and 11 of the amended

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statement of claim were denied. Finally, learned counsel urged this Court to hold that the learned justices of the lower Court’s treatment of the matter of the tax clearance certificate as being a non-issue and insignificant is erroneous and to resolve this issue in favour of the Appellant.

Learned counsel for the Respondent in his argument made reference to Paragraph 11 of the Amended Statement of Claim and the evidence of PW2 where evidence was given that sufficient money was made available/released to the appellant to cover the balance of N800,000 of the purchase price before the production of the tax clearance certificate and submitted that the tax clearance certificate did not affect the disbursement of the loan and the payment of the balance of the purchase price. Paragraphs 8, 9 and 14 of the Amended Statement of Claim which were referred to by the learned counsel for the Appellant are hereunder reproduced as follows:-

“8. The defendant did not produce his tax clearance certificate as and when requested to do so as agreed by him and by such conduct frustrated the whole agreement set up with progress bank with his knowledge and consent and in

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his presence and the completion and registration of the sale of the property in favour of the plaintiff was thereby frustrated.

9. The plaintiff afers (sic avers) that if the defendant had assiduously addressed himself on the 9th June, 1992 and the days immediately following to his self-assumed promises made in writing on that day, the loan would have been immediately made available.
10. Without such tax clearance certificate, the transfer of the property to the plaintiff could not be registered and in absence of such registration, the Bank could not lend further money to the plaintiff when the document agreed to be used as security is not in the plaintiff’s name.”

These paragraphs of the amended statement of claim were denied by the Respondent at Paragraphs 16, 17 and 19 of his statement of defence as follows:-

16. The defendant denies Paragraph 8 of the statement of claim and states that he had actually released his tax clearance certificate of 6th July, 1992 to the plaintiff when she demanded for same. He did not, and could not have frustrated a loan to the plaintiff when he was already too pressed due to the plaintiff’s inabilities and

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misrepresentations as to her ability to pay for the property within the stipulated time

17. The defendant vehemently denies Paragraphs 9, 10 and 11 of the statement of claim and states that he did not renege on any of his obligations to the plaintiff and that he is not aware that the receipt referred to in the said Paragraph 11 could be a substitute to tax clearance certificate, assuming without conceding that it was given at the instance of the defendant and after the deposit of N700,000.00.
18. The defendant denies Paragraphs 13, 14 and 15 of the statement of claim and states that he did not represent to anybody that as at 3rd June, 1992 he had a current tax clearance certificate and that the plaintiff and neither have registered a property for herself when she had not purchased same, nor used same as security for a loan.”

From the pleadings, I have reproduced hereinabove, parties did join issues on tax clearance certificate. The question now is whether it was the failure of the Respondent herein to produce the tax clearance certificate that led to the collapse of the contract between the parties. The Appellant at Paragraph 11 of his amended

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statement of claim pleaded that in order to convince the Bank to release the balance of N800,000.00, an arrangement was made between the defendant and herself that a receipt for N200,000.00 should be issued in her favour acknowledging that the Respondent received a further sum of N200,000.00 from her so as to strengthen her hand in pressing that the bank expedite the release of the N800,000.00 to her. This clearly shows that the release of the N800,000.00 by the bank was not solely dependent on the production of tax clearance certificate by the Respondent herein. This is even made more evident in the testimony of PW2, an Assistant Manager in the Legal Department of Progress Bank where the Appellant’s application for loan was being processed. This is what he said at page 132 of the printed record of this appeal:

“I came into the matter when the Managing Director invited me to his office on 8th June, 1992, when the two parties named in Exhibit 5 were in the Managing Director’s office and I was asked to prepare Exhibit 5. The Bank was prepared to give a loan of up to N2millon to Miss Achonu, but at that time, the Bank had already given some money to Miss

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Achonu to pay to the defendant for the purchase of the property No. 66, Bode Thomas Street, Surulere by Miss Achonu, the plaintiff.”

Under cross examination, this witness admitted that the bank had given the Appellant enough money to cover what was required for payment of the balance of the purchase price and that at the time, the encumbrance on the property had been removed. From the evidence of this witness, it is very clear that the release of the money to the Appellant by the Bank and the removal of the encumbrance from the disputed property were carried out by 15th June, long before the Appellant’s promise on the 3rd July, 1992 to pay the balance of the money due on the property to the Respondent within one week. See Paragraph 12 of the amended statement of claim. On this piece of evidence, the Court of Appeal in its judgment at page 315 of the printed record of this appeal held:-

“If the charge had been removed by 15th June, 1992, any delay in disbursing the loan after that date cannot be attributed to the Appellant’s failure to furnish his tax clearance certificate. It was no longer the fault of the Appellant that the documents could not be

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formalized since he has surrendered the land certificate and the tax clearance certificate to Progress Bank.”

I entirely agree with the learned justices of the lower Court that the delay in payment by the Appellant to the Respondent cannot be attributed to the Respondent’s inability to furnish his tax clearance certificate to Progress Bank. This is so because there is in evidence that the encumbrances on the property had been removed by 15th June, 1992 and the Appellant admitted in his evidence in chief that the matter of tax clearance did not affect the approval of the loan. It was therefore no longer the fault of the Respondent that the bank’s documents could not be formalized, since he had surrendered the tax clearance certificate and the land certificate to the bank.

I also agree with the lower Court that the production of the tax clearance by the Respondent was not crucial or significant to the performance of the sale agreement. This issue is accordingly resolved against the Appellant and in favour of the Respondent.

On the 3rd issue for determination of this appeal, learned counsel for the Appellant submitted that the lower Court

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took Paragraph 12 of the amended statement of claim in isolation of the con in which it was made, placed undue reliance on the said paragraph of the amended statement of claim and arrived at a wrong conclusion. According to the learned counsel, the agreement between the parties, Exhibit 1 and the tripartite memorandum of understanding between the parties herein and the Progress Bank, Exhibit 5 made no reference to the deadline for payment of the balance of N800,000.00. It is learned counsel’s contention that pleadings should be considered in their totality and not in isolation of the con in which they are made or other matters contained in other paragraphs. In aid, learned counsel cited Fadlallah v Arewa iles Ltd (1997) 8 NWLR (Pt. 518) 546. Learned counsel further submitted that a contract in which time is of the essence, must fall within the three guiding principles enunciated by this Court in N.B.C.I v Integrated Gas (Nig) Ltd (2005) ALL FWLR (Pt. 250) 1. Learned counsel urged this Court to hold that this case does not fall within the class of contracts bound by time stipulation. Finally, learned counsel urged this Court to resolve this issue in

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favour of the Appellant.

For the Respondent, it is argued that time was of the essence in the contract of sale between the parties and that the lower Court followed the principles enunciated by this Court in N.B.C.I v Integrated Gas Nig Ltd (Supra). Learned counsel submitted that it was the Appellant who voluntarily pleaded that the balance of the money due to the Respondent, according to their agreement, was to be paid within one week, as such it does not matter whether the time limit was included in Exhibit 1 or Exhibit 5. Learned counsel urged the Court to resolve this issue in favour of the Respondent.

Paragraph 12 of the amended statement of claim is hereunder reproduced as follows:-

“Pursuant to their agreement such receipt was issued and an aide memoire was prepared and signed by the plaintiff on the 3rd July, 1992 signifying that in fact such sum of money (N200,000.00) was yet to pass and that the balance of the purchase price would be paid within a week.”

At Paragraph 18 of the amended statement of defence, the Respondent herein denied the averment in Paragraph 12 of the amended statement of claim in the following words:-

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“18. The defendant denies Paragraph 12 of the statement of claim and states that the undertaking of 22nd July, 1992 (written) was the final grace he gave to the plaintiff to pay for the property or he would not sell same any longer. The undertaking was not made on 3rd July, 1992 as claimed.”

At page 119 of the printed record of this appeal, the Appellant who testified in chief denied giving any undertaking that the balance would be paid in one week. This is what she said-

“I did not give any undertaking that the balance would be paid in one week. I told my lawyer that the defendant wanted me to give an undertaking to pay the balance within one week and I said I could not.”

Clearly the evidence given by the Appellant herein is at variance with Paragraph 12 of her statement of claim. The law is settled that a party will not be allowed after pleading a particular set of material facts to turn round and base his case on a totally different set of facts without an amendment of his pleading. In other words, parties are bound by their pleadings and evidence which is at variance with the averments in the pleadings go to no issue and should be disregarded by

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the Court. In the instant case, the evidence in chief of the Appellant at the trial Court was not in line with Paragraph 12 of the amended statement of claim and therefore went to no issue. See Emegokwue v Okadigbo (1973) 4 SC 113. Ekpeyone v Ayi (1973) 3 ECSLR 411. Odumosu v ACB (1976) 11 SC 56; Njoku v Eme (1973) 5 SC 293; Ogboda v Adulugba (1971) 1 ALL NLR 68; Ehimare v Emhonyon (1985) 1 NWLR (Pt.2) 177; Metalimpex v Leventis Nig. Ltd (1976) 2 SC 91. Having failed to amend the averment at Paragraph 12 of the amended statement of claim, the appellant is bound by the contents thereof, since her evidence in support goes to no issue. The lower Court was thereof right when it held that time was of the essence in the execution of the contract. The law is settled that where a purchaser of land makes part payment of the purchase price, but defaults in paying the balance, there can be no valid sale even where the purchaser is in possession. Such possession is incapable of defeating the vendor’s title. See Odusoga v Rickets (1997) 7 NWLR (Pt. 511) 1.

In the instant case, the purchaser, that is the appellant had failed to pay the balance of the purchase price at

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the expiration of the one week agreed upon by her and after extension of time and repeated demands for payment by the Respondent. The learned justices of the Court of Appeal were therefore justified when they quashed the trial Court’s order for specific performance. This issue is accordingly resolved against the appellant and in favour of the Respondent.

Having therefore resolved all the three issues against the appellant, this appeal shall be, and it is hereby dismissed. I make no order as to costs.

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SC.254/2006