Francis Anaeze V. Ude Anyaso (1993)

LawGlobal-Hub Lead Judgment Report

WALI, J.S.C.

By a Writ of Summons filed in the Aba Division of the Imo State High Court, the plaintiff claimed against the defendant for the following reliefs:

“(a) Recovery of possession of a house and land known as No.70 Danfodio Road, Aba in the Aba Urban Division.

(b) An account of all the rents collected by the defendant from the tenants of the said house and land known as No.70 Danfodio Road, Aba from 1964 until possession is given up.”

Pleadings were filed, amended and exchanged. The defendant also filed a counter claim. At the end of the hearing the learned trial Judge, Mbachu J., entered the following judgment for the plaintiff:-

“In the circumstances the plaintiff succeeds in his claim for declaration that he is the lessee of the property known as Plot 5 in Block 159 Aba otherwise known as No. 70 Danfodio Road, Aba. He is therefore entitled to possession and I order that the defendant vacates the premises on or before 30th November, 1985. I deem it unfair to grant the plaintiff’s claim for account of the rents collected by the defendant from tenants nor will it be fair and just to order the plaintiff to refund 1,300 pounds to the defendant; the contract between them is frustrated and unenforceable and each party should bear his own loss. I make no order as to costs.

Aggrieved by the judgment of the trial court, the defendant lodged an appeal against it in the Court of Appeal Port Harcourt Division. His appeal was dismissed. The Court of Appeal affirmed the judgment of the trial court.

The defendant has now further appealed to this court against the judgment of the Court of Appeal.

Henceforth both the defendant and the plaintiff will be referred to as the appellant and the respondent respectively.

In addition to the original grounds of appeal filed in this appeal, the appellant sought for and obtained leave to file and argue one additional ground of appeal. This was done.

The simple facts of this case as revealed in the pleadings filed and the evidence adduced by the respondent are as follows:-

The plaintiff/respondent Ude Anyaso is the lessee of State Land property registered as Plot 5 in Block 159, otherwise known as No. 70 Danfodio Road, Aba. This property was assigned to him by Nwana Kalu by a deed of assignment dated 22nd February, 1955 and registered as No. 17 at page 17 in Volume 124 of the Land Registry then in Enugu.

In order to obtain credit facilities from the African Continental Bank Aba, the respondent, sometime in 1955 created an equitable mortgage in favour of the African Continental Bank by depositing with them the title deed of No. 70 Danfodio Road, Aba. In return, the African Continental Bank granted the respondent the credit facilities and issued him with Exhibit “A” titled MEMORANDUM of DEPOSIT of DEEDS to secure the ACCOUNT of a THIRD PARTY as well as the ACCOUNT of the DEPOSITOR.”

When the lease referred to above expired on 31st December, 1960, the respondent re-newed it for another term of 40 years, i.e. from 1/1/61 to 2000. The renewed lease was registered as No. 20 at page 20 Volume 368 in the Land Registry in Enugu. However the respondent did not deposit the renewed lease with the African Continental Bank, Aba.

Sometime in 1964, the respondent, as stated in paragraph 7 of his amended statement of claim, while the said equitable mortgage with the African Continental Bank was subsisting, borrowed the sum of 1,300.00 (One thousand, three hundred Pounds) from the appellant. Later as he was unable to repay his loan, and under pressure from the appellant, he reluctantly agreed to assign to the appellant the property already under an undischarged mortgage to the African Continental Bank.

The respondent issued the appellant with Exh. “C” which is a receipt for the sale of the property to the appellant and acknowledging the receipt of 1,300.00 pounds as the purchase price. The respondent then put the appellant in physical possession of the property. The respondent however said he did so on a fresh arrangement, whereby the appellant would remain in possession “until he had realized the full amount owing to him after deduction for outgoings”.

The appellant on his part denied any knowledge of any mortgage of the said property or that he was put in possession until the amount he loaned to the respondent was fully amortized from the rents to be collected on the said property. The appellant averred that the respondent sold the property to him for 1,300.00 pounds which he paid and the respondent issued him with Exhibit “C”. He denied giving the said amount to the respondent as a loan to be repaid.

The rest of the appellant’s version of the case is as narrated in the following paragraphs of his amended Statement of Defence:-

“7. In September, 1964, the plaintiff agreed to sell the said premises to the defendant through a commissioned agent called Anaeme Onwuachunam. During the negotiations for the purchase of the said premises, the defendant in the company of P.O. Ezife went to the Land Office, Aba and made a thorough search in the said office about the title to the said premises. The erstwhile Land Officer produced the file of the said premises and after going through the said file advised the defendant and P.O. Ezife that the plaintiff was the State Lessee of the said premises and that the same was not in any way encumbered.

8. After all necessary inquiries, the defendant paid to the plaintiff the agreed purchase price of 1,300 pounds now N2,600.00 for and on the said premises and the latter issued to the former there for a receipt dated the 5th day of October, 1964.

9.

(a) Following the aforesaid sale, the plaintiff and the defendant together went to the Land Office, Aba and completed Land Form B dated the 5th day of October, 1964 signed by both parties.

(b) The appropriate officer of the Land Office, Aba thereafter inspected the said premises and issued his report dated the 9th day of October, 1964.

(c) By a letter reference LSA: 5164/47 dated the 9th day of April, 1965 the Land Officer, Aba forwarded the Land Form B and other necessary documents to Enugu for the required statutory consent.

(d) By a letter reference LABA: 2579/15 dated the 17th day of June, 1965 the Principal Land Officer, Enugu communicated to the Land Officer, Aba the statutory consent for the assignment of the said premises by the plaintiff to the defendant.

(e) By a letter reference LSA: 5164/53 dated the 25th of October, 1965 the Land Officer, Aba called on the plaintiff and the defendant to pay the assignment fees of 34/10/ pounds (now N69.00). The defendant on the 1st day of November, 1965 paid the said amount to the Land Officer, Aba, who issued him receipts Nos. A854453 and A939292 of that date therefore.

(f) By another letter dated the 25th day of April, 1966 addressed to both the plaintiff and the defendant, the Land Officer called on both parties to ‘call at this Office early to execute the engrossed deed of assignment’ Plot 5 in Block 159, Aba (the said premises).

(g) Before the execution of the said engrossed deed of assignment the crisis and the Nigerian Civil War broke out.

10. upon the payment by the defendant to the plaintiff of the purchase price as aforesaid (paragraph 8 above), the latter delivered to the former the said lease and all other documents relating to the said premises.
11. By a letter dated the 19th day of February, 1966 the Land Officer, Aba called on the defendant to produce in his office “the Original of the head lease (the said lease) for the preparation of the deed of assignment” of the said premises. The defendant complied as directed.
12. In answer to paragraph 13 of the amended statement of claim the defendant avers that since the 5th day of October, 1964 the defendant has been in undisturbed possession of the said premises as the owner hereof until he received from the African Continental Bank Limited a letter dated 31st January, 1974 addressed to “The Landlord”, 70 Danfodio Road, Aba. The said letter notwithstanding, the defendant is still in undisturbed possession of the said premises;

12(a) In respect of paragraph 13 of the amended statement of claim the defendant further avers;

That after the civil war he made efforts to have the assignment executed in his favour but the plaintiff was all along frustrating his efforts. The Land Officer Aba wrote him (the defendant) a series of letters to renew the assignment transaction. These are letter Nos. LSA/5164/91 of 12th January, 1972 and letter No. LSA; 5164/101 of 6th March, 1974; but the plaintiff was nowhere to be seen. When the defendant managed to get the plaintiff’s address he wrote him through P.O.Box 103, Victoria, United Republic of Cameroon, a letter dated 28th March, 1974, soliciting his co-operation for the assignment but he failed to co-operate.”

Both the appellant and the respondent filed and exchanged briefs of arguments. In the appellant’s brief the following seven issues were raised for determination in this appeal:-

“(1). Whether the plaintiff/respondent had established that he was an illiterate person under section 3 of the Illiterates Protection Law.

(2) Whether the trial court and the Court of Appeal were right in saying that the onus had shifted to the defendant/appellant to establish that the plaintiff/respondent was not an illiterate, and that the defendant/appellant had not discharged that onus.

(3) Whether the plaintiff/respondent understood the purport of his action at the material time, and if so, whether the lower courts were right in holding that the plaintiff/respondent could take advantage of the Illiterates Protection Law.

(4) Whether the remedy of specific performance could avail the defendant/appellant in the circumstances of the case.

(5) Whether the Lower Courts were right in holding that there was a subsisting mortgage (whether legal or equitable) of the property in question in favour of the African Continental Bank Ltd.

(6) Whether the Lower Courts were right in saying that there was a clause in the head lease Exhibit B containing a limitation clause prohibiting assignment of the property without the Governor’s consent and that Exhibit C could not therefore be the subject of an order for specific performance.

(7) Whether judgment could have been entered for the plaintiff/respondent by the lower court when the plaintiff/respondent’s evidence had departed on many material occasions from his pleadings.”

The respondent on his part formulated the following four issues for determination:

“(i) Whether the appellant has made out any sufficient case to move this court to interfere with the concurrent findings of the High Court and the Court of Appeal to the effect that the respondent is an illiterate person and did not write Exhibit C though he signed it.

(ii) Whether Exhibit C can be enforced against the respondent, an adjudged illiterate person when it was the finding of both the court of first instance as well as that of the Court of Appeal that the writer did not comply with Sections 3(a) and (b) of the illiterates Protection Law Cap. 64 Laws of Eastern Nigeria 1963 in force in Imo State, and when there was no evidence given as to the circumstances when the respondent signed Exhibit C.

(iii) Whether the transaction in Exhibit C can be enforced by an order for specific performance when:-

(a) There was evidence of a prior subsisting encumbrance by way of a legal mortgage of the same property in favour of A.C.B. Ltd., and

(b) The head lease Exhibit C contained a covenant against assignment or transfer of possession without prior consent and there was no evidence that the respondent applied for or obtained the requisite consent before 5th October, 1964 when Exhibit C was signed or at any time thereafter.

(iv) Whether the High Court or the Court of Appeal ought to have found in favour of the Counter-claim of the appellant in the peculiar circumstances of this particular case, granted that the respondent did not file any reply to the counter-claim.

The issues formulated by the parties can be condensed into the following: –

1. Whether the respondent is illiterate and can therefore take the advantage of the Illiterates Protection Law, Cap. 64 Laws of Eastern Nigeria, 1963 applicable to Imo State of Nigeria.
2. Whether both the trial court and the Court of Appeal were right in their findings that Exh. B was a subsisting lease by the respondent in favour of A.C.B. containing a limitation clause prohibiting any further assignment of the property in dispute.
3. Whether, without Governor’s consent, the appellant could rely on Exhibit C and ask for a specific performance.
4. Whether the respondent was entitled to judgment when the evidence he adduced had on material occasion departed from his pleadings.

Issue one as framed above covers issues 1,2, and 3 of the appellant’s brief as well as issues (i) and (ii) of the respondent’s brief.

It was the submission of learned counsel for the appellant that the mere ipse dixit of the respondent was not sufficient proof for the respondent’s illiteracy as averred in his pleadings, and that both the trial court and the Court of Appeal were wrong in finding him to be illiterate on that evidence. Learned Senior Counsel referred to Exhibits A and B as the two earlier documents the respondent signed his name without any jurat before he signed Exhibit C in the same manner. He cited and relied on several decided cases to support his submissions, amongst which are – Alimi Lawal v. G.B. Olivant (Nig) Ltd (1971) 1 U.I.L.R. 37; Ntiashagwo v. Amodu

(1959-60) WNLR (Pt.4) 273 and Alhaji R.A. Salami v. Savannah Bank of Nigeria Ltd. (1990) 2 NWLR (Pt.130) 106.

Learned counsel for the respondent submitted that upon a proper construction of Section 3(b) of the Illiterates Protection Law the Court of Appeal was right in its conclusion that the respondent is illiterate and therefore Exhibit C cannot be binding on him. He also cited several authorities in support of the submission, particularly – S.C.O.A. Zaria v. AD. Okon (1959) 4 F.S.C. 220: (1959) SCNLR 562; Osefo v. Uwallia (1971) Commercial Law Report (ALR) 421 and Ezera v. Ndukwe (1961) 1 All NLR (Pt.3) 564.

From the pleadings filed in this case it seems that the main issue for the determination in this appeal is the illiteracy of the respondent. In paragraph 1 of the Amended Statement of Claim, the respondent pleaded:-

“… (he) is an illiterate (and) is the owner and lessee of all that State Land/property registered at Plot 5 in Block 159, otherwise known as No. 70 Danfodio Road. Aba.”

To support this averment, the respondent gave evidence wherein he said:

“I am an illiterate who cannot read and write but I can sign my signature.

To further buttress the illiteracy averment, the respondent tendered Exhibit A in evidence. Exhibit ‘A’ is the memorandum relating to the title deed of the property in dispute and which was given to the respondent by the A.C.B. when the latter granted him the Credit facilities and holding the title deed as a security.

In civil claims, the duty rests on a plaintiff to prove his case. It is the substance of the respondent’s case that the is an illiterate person who only knows how to sign his signature and no more. He said he can neither read nor write.

To refute the respondent’s allegation of illiteracy, and controvert the evidence adduced in support thereof, the appellant specifically denied paragraph 1 of the Amended Statement of Claim by paragraph 2 of the Amended Statement of Defense. Paragraph 2 reads as follows:

“2. The defendant denies paragraph one of the amended Statement of Claim in its entirety and shall at the trial of this suit put the plaintiff to the strict proof of the facts therein alleged. In particular, the defendant states that the plaintiff is not an illiterate and shall at the trial of this suit rely on the Building Lease dated the 7th day of August, 1963 and registered as No. 20 page 20 in Volume 368 of the register of Deeds then kept at Enugu but now at Owerri (hereinafter referred to as the said Lease), a receipt for the purchase money of Plot 5 in Block 159, otherwise known as No. 70 Danfodio Road, Aba, the subject matter of this suit (hereinafter referred to as the said premises) and Land Form B dated the 5th day of October, 1964 all of which were signed by the plaintiff.

In his evidence D.W.1 (as the defendant) said-

“I know the property known as No. 70 Danfodio Road, or No.5 in Block 159, Aba. I am the owner of the property 70 Danfodio Road, Aba. I bought it from the plaintiff in 1964 for 1,300 (One thousand, three hundred pounds) now N2,600.00 and he gave me a receipt for it. This is the receipt the plaintiff gave me, tendered after over-ruling the objection on its admissibility, it was admitted in evidence as Exhibit C. Also admitted in evidence as Exhibit “B” through the respondent under cross examination is the Building Lease (renewed). It is to remain valid from 1st January 1961 to the year 2000.

Apart from these exhibits, other documents to which the respondent was a party and also admitted in evidence are Exhibits D, E, and F.

In resolving this issue of illiteracy, the learned trial Judge made the following observations and conclusions:

“In the first place it is necessary to resolve the literacy or illiteracy of the plaintiff. I have seen what he wrote on Exhibits A, Band C; they look alike and easily identifiable from their appearance as the writer’s signature, and I hold the view that plaintiff signed them. Judging by the contents, wording and nature of the documents, Exhibits A, B and C, even though the plaintiff signed them, he is not the maker or writer of each of those three documents. Section 3 of the Illiterates Protection Law requires the writer of a document made at the instance of an illiterate person to enter his name on the document as the writer and also his address. The failure on the part of the makers of those three documents Exhibits A, Band C to comply with the requirements of the law is not a matter that should attract sanctions against the illiterate plaintiff and he should not be blamed for the default of other persons who wrote the documents.

Section 3(b) of the Illiterates Protection Law provides that jurat having been inserted and the requirements of the law regarding the maker having been fulfilled, this is equivalent to a statement that prior to signing or thumb printing the document, it had been read over and explained to the illiterate and that he (the illiterate) was the person who thumb-printed or signed the document – Italics mine.

The mere fact that a person puts down, scribbles or even signs a document does not necessarily confer on him the status of literacy. The plaintiff whom I have watched closely throughout his evidence and the proceedings is certainly an illiterate in spite of what he wrote as signature on (he documents mentioned above as tendered in evidence.

Defence relies on Exhibit C and several other documents as proving that there was a sale of No. 70. That document reads in part 1, Ude Anyaso of No. 70 Danfodio Road, Aba ….. today 5th day of October, 1964 sold my plot 5 in Block 159 Aba otherwise known as No. 70 DanFodio Road, Aba to Mr. Francis Nwafor Anaeze of c/o 41 Jubilee Road, Aba for 1,300 pounds.This document however is deficient in the sense that it contravenes the Illiterates Protection Law in so far as the plaintiff, an illiterate, is concerned.”

In affirming the decision of the trial court, Onu, J.C.A. giving the lead judgment of the Court of Appeal, (with which Olatawura, J.C.A. (as he then was) and Kolawole, J.C.A. agreed) said:-

” …. I agree with the submission of learned counsel for the respondent, that a person as in the case in hand may know how to sign his signature and yet be quite illiterate. In other words, the ability to sign one signature, as amply demonstrated in this case, is no proof of literacy. See S.C.O.A. Zaria v. A. D. Okon (1959) 4 F.S.C. 220 ;(1959) SCNLR 562. For instance, although a self-confessed illiterate, the respondent admitted signing a Form B (not tendered) at the Land Office al Aba (See page 68 line 17 of the trial court’s record). The learned trial Judge being also a Judge of facts, heard evidence from both parties in support of their pleaded facts, saw and watched them give evidence and eventually rejected appellant’s evidence on the point while expressing preference for the respondent’s evidence on the point. This court as an appellate court will therefore be loath to upset such findings of fact, unless it can be shown that the decision arrived at is perverse, the result of an improper exercise of judicial discretion or that the trial court made wrong deductions or drew wrong inferences from admitted or established facts.”As I have said earlier, the issue of illiteracy is a question of fact to be decided objectively on the evidence presented to the court. In the present case, the only evidence by the respondent is his own ipse dixit that he is illiterate. The court cannot decide the issue of the respondent’s illiteracy on the scanty evidence given by him and his demeanor. As the learned counsel for the appellant observed the best evidence of the respondent’s illiteracy could have come from P.W.2 and who said nothing on that.

Against this scanty evidence, there are Exhibits A and B. These are documents, complicated as they are, and signed by the respondent without any jurat. There was no issue of illiteracy raised in them. These exhibits go to affirm the contention of the appellant that the respondent is literate.

The learned trial Judge had rightly in my view made a correct finding on Exhibit C and that it was signed by the respondent. There is no appeal against this finding. Having done so, was it open to him then to say “judging by the contents of Exhibits A, B and C even though the plaintiff signed them, he is not the maker or writer of each of these three documents” I shall answer the question in the negative for the following reasons:-

1. The authority and validity of both Exhibits A and B were not being challenged. Whereas Exhibit A was put in evidence to show that the property in dispute was pledged to A.C.B. Ltd, by the respondent as security for the credit facilities granted him by the said Bank.

Exhibit B was in evidence for showing that the appellant was put in possession of the property in dispute by the respondent voluntarily.

2. Exhibit C was put in evidence to show the existence of a binding contract for the sale of the property by the respondent to the appellant.

The overall effect of Exhibits A and B go to support the appellant’s claim that the respondent was literate at the time he signed and issued Exhibit C to the appellant. He was aware, conscious and fully knowledgeable of the effect of what he was doing. It was not the respondent’s case that Exhibit C was written on his behalf by the appellant or his agent to deprive the appellant of the benefit therein he is seeking to enforce, nor was it the respondent’s case that the appellant fraudulently or by use of threat, force or any other illegal means induced the respondent to issue Exhibit C to him (the appellant).

In S.C.O.A. Zaria v. Okon (supra), there was evidence that Exhibit A was written by the appellant’s manager as agent, and without strictly complying with section 3 of the Illiterates Protection Ordinance, (which is in pari materia with section 3 of the Illiterates Protection Law (Cap 64) of Imo State) sought to enforce it against the respondent. The Federal Supreme Court held at page 223 (per Quashie- Idun).

“I agree with the learned Chief Justice that …. the contents should have been explained to him by the Manager of the plaintiff’s company who prepared it and asked the defendant to sign it. As the learned Chief Justice pointed out in the judgment no-where does the Illiterates Protection Ordinance Cap 83 say that failure to comply with the provisions of the Ordinance renders a document unenforceable. ”

In the other case of U.A.C. of Nigeria Ltd. v. Edems & Ajayi (1956-58) NRLR 33, the trial court refused to enforce the contents of a document against the 2nd defendant on its finding upon the evidence before it That:-

“It is a bond under seal in the name of the second defendant for 300 pounds dated 12th October, 1956. The second defendant placed his thumbprint thereon and this has been witnessed by Garuba Ibrahim, the plaintiff’s clerk. The document has been cyclostyled with blank spaces for the name and address of the bondor, the amount, the date, and the name and address of the person bonded. These particulars have been filled in by the plaintiff’s clerk Garuba Ibrahim.

I find that the fact that the second defendant thumb printed the bond is prima facie evidence that he is illiterate.

The attestation clause to the bond does not contain a statement to the effect that the bond was read over and explained to the second defendant before he thumb printed it, nor is there an endorsement thereon of the name and address of the writer of the document, as required by Section 3 of the Illiterates Protection Ordinance. Cap. 88.

“The object of the Ordinance is to protect an illiterate person from possible fraud. Strict compliance therewith is obligatory as regards the writer of the document. If the document creates legal rights and the writer benefits there under those benefits are only enforceable by the writer of the document if he complies strictly with the provisions of the ordinance. If a document which does not comply with the provisions of the Ordinance creates legal rights between the illiterate and a third party then evidence may be called to prove what happened at the time the document was prepared by the writer and the parties signed it. But the writer himself cannot adduce evidence in his own favour to remedy the omission.”

The principle laid in U.A.C. v. Edems & Ajayi as regards the interpretation of Section 3 of the Illiterates Protection Ordinance was approved and followed by the Federal Supreme Court in S.C.O.A Zaria v. Okon (supra).

The facts in both U.A.C. v. Edem & Ajayi and S.C.O.A. Zaria v. Okon are dissimilar to the facts of the present case and therefore are not apposite. As I said earlier, Exhibit “C” is simply a receipt evidencing payment by the appellant to the respondent; and the prima facie evidence in this case is that it was issued by the respondent. There is no any other evidence to the contrary. As far as Exhibit C is concerned, the appellant is a third party who cannot be denied the benefit of its contents by a mere plea by its maker that he was illiterate at the time he made it, since Exhibit C is not per se an inadmissible document. See Ezera v. Ndukwe (1961) All NLR 404. Having regard to the authorities referred to above I am of the opinion that there was no sufficient evidence upon which the trial court could return a verdict that the respondent was illiterate at the time he signed Exhibit “C” and the Court of Appeal was equally wrong to sustain such a verdict. The findings of fact on this issue are perverse, unreasonable and not supported by the evidence adduced. See Ntiaro v. Akpan (1918) 3 NLR 10; Duval & Anor. v. Orcel 1 WACA 105; Lawal v. Dawodu & Anor (1972) All NLR Vol. 1. page 707.

On the issue of whether there was a subsisting mortgage in favour of A.C.B. Ltd. on the property in dispute, as averred in paragraph 4 of the Amended Statement of Claim, it is my view that this is not an important matter to the decision of the appellant’s case. And even if it is, the evidence before the court did not show that the purported mortgage of the A.C.B. Ltd. is prior in time to the appellant’s interest in the property in dispute since, as argued by learned Senior Counsel to the appellant, the purported mortgage evidenced in Exhibit A still remained undated and not signed by the mortgagee i.e. representative of A.C.B. Ltd. The question of its registration is therefore non issue, since it is not a valid and enforceable document. See Harvey v. Pratt (1965) 1 WLR 1025. If even Exhibit “A” had been properly executed, it is no more than a charge on the disputed property for the loan granted.

In paragraph 5 of the Amended Statement of Claim, the respondent averred that-

“The equitable mortgage referred to in paragraph 4 above was converted into a legal mortgage by the A.C.B. Ltd. in 1974 and registered as No. 52 at page 52 in Volume 728 of the Lands Registry in Enugu. The said legal mortgage will also be founded upon.”

Apart from the ipse dixit of the respondent that:

“Subsequently A.C.B. Ltd. converted the equitable mortgage to the said property into a legal mortgage and registered it.” and the evidence of P.W.2 that:

“My employers have a charge on the property registered as 52/52/728 Enugu now Owerri”,

There is nothing to show that the purported equitable mortgage was converted into a legal mortgage. The evidence of P.W.2 only showed that the mortgagee instructed their Solicitor P.K.Nwokedi Esq. to write to the Lands Officer at Aba intimating the Lands Registry that the A.C.B. Ltd. as mortgagee has an interest on the disputed property secured by a deposit of its title deed, which was not even put in evidence. The letter of 18th February, 1974 alleged to have been written to the Lands Registry at Aba by P.K. Nwokedi was not in evidence in this case. The evidence that A.C.B. Ltd. is having a registered charge and a legal mortgage on the disputed property is hear-say. It proved nothing. Both specie of mortgages are proved by producing admissible and properly executed documents. What is pleaded, if not admitted must be proved by admissible evidence. There is no evidence before the trial court, nor the Court of Appeal, to reach the conclusion that there is subsisting equitable mortgage or legal mortgage by the respondent to A.C.B. Ltd., much more to speak of their priority in time to the appellant’s interest on the disputed property as evidenced in Exhibit “C”. See Leo Obijuru v. I.M.Ozims (1985) 4 SC. (Pt.1) 142 at 163. (1985) 2 NWLR (Pt.6) 167.

The purpose of tendering Exhibit C in evidence is not to establish that the appellant has an equitable interest in the property in dispute but simply to show that he has a contractual right of a kind which he can seek to enforce through the court. See Fakoya v. Saint Paul’s Church, Sagamu (1966) 1 ALR Commer. 459 and Yaya v. Mogoga 12 WACA 139.

Issues 4 and 6 deal with the order of specific performance of the contract evidenced in Exhibit C.

It is the submission of learned Senior Counsel for the appellant that this is a case in which this court should exercise its discretion and grant an order for specific performance to the appellant for the following reasons:

1. There was clear evidence that the appellant had paid the purchase price of the property as evidenced by Exhibit C.
2. The respondent handed over to the appellant the title deed of the property – Exhibit B.
3. The appellant has been in undisturbed possession of the property since 1965.
4. The respondent in company of the appellant went to the Lands Office, Aba where both of them signed Land Form for the assignment of the property as evidenced in Exhibit H2
5. That the Hon. Minister for Land matters had given his approval in principle for the assignment of the property as shown in Exhibit H1
6. That the appellant had paid to the Treasury the sum of 34.10.0pds for the preparation, registration and stamping of the Deed of Assignment as directed by the Principal Land Officer ’97 Exhibits D1 and D2,
7. That all these steps were taken for the completion of the assignment which would have been completed but for the outbreak of the civil war.
8. That at the end of the civil war, the appellant traced the whereabouts of the respondent in the Cameroon Republic and invited him to come to complete the execution of the assignment; but the latter became elusive and commenced the present suit.

All these facts were pleaded by the appellant in his amended Statement of Defense to which no reply was filed. The appellant gave evidence and put in documents to prove the averments. Learned counsel cited and relied on several authorities in support of these submissions.

It is now trite that a party seeking to enforce the performance of a contract must show that all conditions precedent to such performance have been performed by him, or is ready and willing to perform all the terms which he ought to have performed. See Australian Harwoods Property Ltd. v. Commissioner for Railways (1961) 1 All E.R. 737 particularly at 747.

Where there is a valid enforceable contract and one of the parties there to defaults in performance, as in this case, the other party has two options:

(a) Insist on the actual performance of the contract or

(b) Seek damages for breach.

The law takes the view that, for a breach of contract for the sale of land, damages cannot usually be an adequate remedy and the purchaser is entitled to have the contract specifically performed. See Nigeria Land and Sea Food Co. Ltd. v. Roadside Engineering Foundry Ltd. (1987) 1 NWLR (Pt.48) 191 and Osagie v.Oyeyinka Anor (1987) 3 NWLR (Pt.S9) 144.

It is my view that the present contractual transaction between the appellant and the respondent does not fall within the exceptions under the remedy of specific performance and the appellant is entitled to benefit from the remedy.

It is pertinent to mention as done by the learned Senior Counsel for the appellant that the respondent filed no reply to the appellant’s counter-claim, which therefore stands undisputed.

The appeal has merit and it succeeds. The judgment and orders contained in the judgments of the courts below are set aside and in place thereof, the following orders are substituted:-

that the appellant is granted an order of specific performance of the sale of plot 5 in Block 159 otherwise known as 70 Danfodio Road, Aba and that the respondent is hereby ordered to execute in favour of the appellant a deed of assignment of the said property, within 30 days of the date of this judgment.

Plaintiff/respondent’s claims are dismissed. The appellant is awarded N1000.00 costs against the respondent in this Court, N700.00 and N500.00 costs respectively in the Court of Appeal and the trial court.

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SC.26/1991