Ganiyu Badaru V. Somolu Community Bank (Nigeria) Limited (2002)
LawGlobal-Hub Lead Judgment Report
GALADIMA, J.C.A.
The respondent was the plaintiff, before the Lagos State High Court in suit No. ID/2460/94, wherein it claimed against the appellant as the defendant, the specific performance of the contract of sale of the landed property, situate at and known as 9, Alarape Street, Bariga, Lagos, and damages for its detention. The parties filed and exchanged pleadings. At the hearing the parties called one witness each. The respondent’s case was that, the appellant who was a customer of the respondent, was the owner of the premises described above. The respondent bought the house for the sum of N1 million. The appellant was first of all paid the sum of N400,000.00. The balance of N600,000.00 was credited into the appellant’s account, according to the respondent. It was the case of the appellant that, he was never paid this balance, nevertheless, the respondent resorted to preparing fraudulent statement of account, showing that the appellant’s account was credited with the sum of N600,000.00.
The learned trial Judge however, gave judgment in favour of the respondent for an order of specific performance.
Dissatisfied, the appellant filed notice of appeal, which was subsequently amended to contain 5 grounds and therefrom, formulated the following issues for determination:
“2.01 Whether the learned trial Judge had jurisdiction to deliver judgment in favour of the plaintiff/respondent, in view of suppression of facts by the plaintiff/respondent?
2.02 Whether the plaintiff/respondent had discharged the burden of proof to be entitled to an order of specific performance of the contract of the sale of the landed property at No.9, Alarape Street, Apelehia, Bariga, Lagos to the plaintiff/respondent?
2.03 Whether the judgment of the learned trial Judge is vitiated by perverse findings of fact?
2.04 Whether the pleadings of the plaintiff/respondent are at variance with the oral and affidavit evidence in respect of the case?”
The respondent on its part formulated only a single issue for the determination of this court thus:
“Whether the plaintiff/respondent discharged the burden of proof required to obtain an order of specific performance of the contract for the sale of the property in dispute in this case.”
I must observe that after careful study of the appellants four issues and the respondent’s sole issue, it is my considered opinion that the 1st and 2nd issues formulated by the appellant, are similar to that of the respondent’s sole issue. Again, the 3rd and 4th issues as distilled are conually the same. It is in view of this observation, that I would consider the 1st and 2nd issues of the appellant and that of the respondent together. Thereafter, the remaining 3rd and 4th issues of the appellant will be considered together.
Firstly, in considering the 1st, 2nd issues formulated by the appellant and the single issue of the respondent, the simple and straightforward question that can arise is, whether the respondent has discharged the burden of proof required of it, to obtain an order of specific performance of the contract for the sale of the property No.9 Alarape Street, Bariga, Lagos, which is in dispute.
In his submission, the learned Counsel for the appellant, has submitted that the learned trial Judge erred in law, in delivering judgment in favour of the respondent, for an order of specific performance of contract of sale of the land, possession thereof and costs of N1,000, when the learned trial Judge had no jurisdiction to do so on ground that, there was suppression of the fact that only N400,000.00 was paid to the appellant, leaving a balance of N600,000.00 unpaid.
It is argued that since the respondent paid the first instalment of N400,000.00 by a bank draft, it should have similarly paid the balance of N600,000.00 by bank draft, instead of allegedly crediting the appellant’s savings account with the said N600,000.00 as evidenced in exhibit ‘P1’ tendered at the trial court. Reliance was also placed on affidavit evidence of the appellant as given in the affidavit deposed to by him on 3/9/99, in an application brought in this court for an order for leave to amend notice of appeal and to adduce fresh or further evidence in order to tender a certified true copy of the ruling of lower court on 19/1/96 in charge No. A/391/94 in order to establish that the respondent did not pay the sum of N600,000 to the appellant. The following authorities were relied on Nwosu v. Imo State Environmental Sanitation Authority (1990) 2 NWLR (Pt. 135) 688 at 718; Weston v. Henshaw (1950) Ch. D 510 at 519; Okoye v. Nigerian Construction and Furniture Co. Ltd. (1991) 6 NWLR (Pt. 199) 501 at 538; Chief Ukwu v. Chief Bunge (1997) 8 NWLR (Pt.518) 527at 544.
It was also contended that the learned trial Judge made perverse findings of fact, which has vitiated the judgment of the lower court as he failed to put the totality of the evidence of both parties on an imaginary scale before coming to the conclusion that, the pieces of evidence for the respondent were “more cogent credible and probable” than those adduced by the appellant.
Concluding, learned Counsel for the appellant submitted that the respondent had failed to discharge the onus of proof that they were entitled to be granted an order of specific performance of the sale of the property in dispute.
In arguing this appeal, learned Counsel for the respondent submitted that there is evidence of sufficient part performance, which is consistent only with the contract reached between the parties and sufficiently to justify an order of specific performance. He contended that the appellant admitted initial payment of N400,000 and by exhibit ‘P1’ he agreed the balance of N600,000 was paid. He further submitted that, even if the balance had been paid after 7/11/93, which was not conceded, that would not produce a breach which would discharge the contract between parties. Reliance was placed on a passage from CHESHIRE and FIFOOT (8th Edition) p. 567. It is being urged that this appeal should be dismissed as it is without merit.
I must say that between the parties, there is a common ground that there is in existence a contract for the sale of the land in dispute. This is clearly evidenced in the respondent’s statement of claim paragraphs 3, 5, 6 and 8, and appellant’s statement of defence paragraphs 6, 8 and 9, more particularly in exhibit ‘P2’ which specified the essential terms of the said contract as follows:
“(a) Total agreed price – N1,000,000.
(b) First instalment of N400,000 was paid to the appellants on 7/8/93.
(c) Balance of N600,000 was to be paid on or before 7/11/93.
(d) Respondent was to be entitled to possession of the property in dispute on payment of the said balance.”
What is really in dispute between the parties, is the payment of balance of N600,000 to the appellant by the respondent. In exhibit ‘D’, admitted at the trial was a letter by learned Counsel for the appellant protesting at the failure of the respondent to pay the said balance of N600,000. On 18/10/99, leave was granted to the appellant by this court, to adduce fresh and further evidence in order to tender or exhibit true copy of charge sheet No. A/391/94 and a certified true copy of the ruling of the lower court of 19/1/96. A copy of this order was served on the respondents, along with the amended notice and grounds of appeal. It is in the affidavit in support of that application to adduce further evidence that the appellant averred that on receipt of exhibit ‘D1’ the respondent lodged complaint with the Police and got the appellant charged to the Chief Magistrate Court, Yaba, on 3/10/94 with criminal offence of obtaining the sum of N400,000 by false pretences, that the appellant would sell landed property to the respondent. The criminal charge was struck out on 19/1/96 for want of diligent prosecution.
The point being made by the appellant here, is why the respondent did not charge the appellant in the Chief Magistrate Court, with obtaining the sum of N1 million by false pretences, instead of charging him with obtaining the sum of N400,000 only by false pretences, if the respondent had actually paid the balance of N600,000 to the appellant as alleged in the statement of account exhibit “Gani/6”.
The appellant scores another point here, when he questions the wisdom of the respondent, who paid the appellant first instalment of N400,000 by a bank draft, now found it expedient to have paid the balance of N600,000 by crediting the savings account of the appellant as shown in the statement of account, which the respondent tendered as exhibit ‘P1’ at the lower court.
By making reference to the order for leave for the appellant to adduce further evidence on appeal, the appellant is contending that the criminal charge is at variance with the respondent’s case at the trial of this case in the lower court.
The learned Counsel for the respondent argued in its brief of argument on the issue of whether it is not belated, after an order for leave to adduce evidence on appeal had been granted, for the respondent to argue that the appellant must establish that the fresh evidence sought to be adduced on appeal had been pleaded at the trial of the case, that the trial Judge had considered the demeanour of the witness in respect of the fresh evidence sought to be adduced on appeal. On this point, I must agree with the learned Counsel for the appellant, that it is not only belated, after leave had been granted to adduce fresh evidence on appeal, but also untenable in law to argued on appeal that the appellant should establish that the fresh evidence sought to be adduced on appeal have been pleaded at trial of the case, where, the learned trial Judge should have considered demeanour of the witness in respect of the fresh evidence that is when the appellate court would have had the benefit of the opinion of the learned trial Judge in respect of fresh evidence sought to be adduced on appeal.
Appellant had pleaded in paragraphs 13, 14, 15, 16, 17 and 19, of his statement of defence at the lower court that, the sum of N600,000 being the balance of the purchase price of N1,000,000.00 for the landed property, was not paid to the appellant or credited to his current account as alleged by the respondent.
The fresh evidence sought to be adduced on appeal was documentary, because it was the criminal charge which was attached as an exhibit to the appellant’s motion, that was sought to be adduced as fresh evidence on appeal.
It has been held by the Supreme Court in Asaboro v. Aruwaji (1974) 4 SC 119, that in considering an application for grant of leave to adduce fresh evidence on appeal, an overriding principle is that the appellate court should exercise its discretion judiciously in the interest of justice by granting leave to adduce fresh evidence where the fresh evidence would disparage already adduced at the trial of the case. Skone v. Skone (1971) 2 AER 582 at pp. 586-587.
As for the demeanour of the witness in the circumstance, the Supreme Court has held in Bamgboye v. Olarewaju (1991) 4 NWLR (Pt. 184) 132 at pp. 145 and 153,
that an appellate court should interfere with perverse finding of facts at the trial court, where the finding of fact did not involve considering of the demeanour of the witness such as where there was documentary evidence to resolve the issue for determination in the case. Again, in Olaloye v. Madam Balogun (1990) 5 NWLR (Pt. 148) 24, the Supreme Court held that, in pursuance of the provisions of section 131(1) of the Evidence Act, oral evidence should be excluded where there was documentary evidence to resolve the issue for determination and as such that it was erroneous on the part of the trial court and the Court of Appeal to have made reference to the oral evidence adduced at the trial of the case for the determination of the case, instead of making reference to the documentary evidence such as the exhibits tendered at the trail of the case because at that stage, the opinion of the trial court as oral evidence adduced at the trial was irrelevant.
It beats me hollow, and I tend to agree with the appellant that the statement of account headed, “Account No. 03924” which is a Current Account, but which one Dr. Abiodun Yera (respondent’s witness) described as “Savings Account” was fabricated to strengthen the case of the respondent. To simply credit the appellant’s account with certain sum of money, without showing in clear terms for what purpose makes me think otherwise.
Why were the pass book and debit notes, not tendered to establish that the appellant actually withdrew N600,000.00 from the account?
Thus, in Yesufu v. ACB Ltd. (1981) 1 SC 74 at p. 92, the Supreme Court once held that, the relationship of a banker with its customer, is that of an agent and principal as well as that of a debtor and creditor. As such, when a bank credits the Current Account of its customer with certain sum of money, it becomes a debtor to the customer in that sum.
In the circumstances, I do not hesitate to say that the learned trial Judge with due respect, made perverse findings of facts. His approach to the entire evidence was erroneous. He has failed to draw proper inferences from the facts in evidence, so as to arrive at just conclusion that, the respondent indeed failed to discharge the onus of proving that it was entitled to be granted an order for specific performance of the contract of the sale of the property in dispute.
If he had carefully put the totality of the evidence of both parties on an imaginary scale, he would have come to the conclusion that, those pieces of evidence for the appellant as shown above, were more cogent, credible and probable, than those adduced by the respondent. For this reason, I resolve the 1st, 2nd issues of the appellant and the sole issue of the respondent, which were considered together, in favour of the appellant.
As I have observed, the con of the 3rd and 4th issues are similar. The third issue, which deals with the issue of perverse findings, have been sufficiently considered. As regards the 4th issue, which has also been treated briefly above, for determination, it is submitted by the appellant that the claim put up by the respondent was at variance with both the oral and affidavit evidence in respect of the case. This submission was made in view of exhibits “Gani/5” and “Gani/F”. Leave having been granted to the appellant to adduce further evidence, it was discovered from these two exhibits that, the respondent dragged the appellant to the Chief Magistrate Court on 3/10/94, for the offence of obtaining N400,000 instead of N1,000.000 by false pretences. A week later, the respondent instituted a civil action in the High Court, for an order of specific performance of the contract of the sale of the landed property. The appellant was charged in exhibit “Gani/5” before the Magistrate Court, for stealing the sum of N400,000 in the first count, and for obtaining the said sum by false pretences as “part payment of N1,000,000 in the second count. N400,000 not N1,000,000 was all that was involved. Now, the claim of the respondent is that the appellant was paid balance of N600,000. This is what makes the contradiction evident and that is why the appellant felt that the statement of account was fabricated, to establish that the appellant actually withdrew the said N600,000. The appellant denied this inconsistent and contradictory claims, it becomes difficult for me to hold that it was the appellant and not the respondent, who committed breach of contract for the sale of the landed property. I do not think that this breach is minor, so as not to discharge the appellant from any liability. It goes to the whole root of the contract not merely to part of it. See page 567 of CHESIDRE and FIFOOT, 8th Ed. (supra). The appellant is contending that the N600,000 was not paid at all as promised by the respondent. This breach of promise is to my mind of major importance. It goes to the substratum of the agreement entered into by the parties. A purchaser of land, who has failed to fulfil a fundamental part of the agreement, such as failure to pay the purchase money at all, or in time, where time was of essence, cannot enforce specific performance of the contract of the sale of that land. See Nlewedim v. Uduma (1995) 6 NWLR (Pt. 402) 383 at 398, Bekederemo v. Colgate palmolive (Nig.) Ltd. (1976) 6 SC 35 at p. 37 at 40. In view of what I have said above, the 3rd and 4th issues are again resolved in favour of the appellant.
Finally, it is my considered opinion that, there is merit in the appeal and it should be allowed. I allow it and set aside the judgment of the lower court, including costs. I assess costs of N5,000 in favour of the appellant in this appeal.
Other Citations: 2002)LCN/1185(CA)
