Mrs. Clementine C. Igwebe V. Saidashs International Limited & Anor (2016)
LawGlobal-Hub Lead Judgment Report
MOHAMMED MUSTAPHA, J.C.A.
This is an appeal against the judgment of the High Court of the Federal Capital Territory, Abuja of the 28th of December, 2004, Coram Justice U.N. Anyanwu, by a notice of appeal dated the 16th of November, 2004; it is to be heard by an order of this Court on the briefs of the appellant and the 1st respondent only.
Briefly stated the facts of the case at the trial were that the 1st respondent offered the appellant Plot 2656 Maitama Abuja, for sale, but it was later replaced with plot 785 Wuse 2 District, Abuja subject to payment of an additional payment of N3,000,000, as balance, an earlier payment of N1.3 was acknowledged, vide Exhibit B.
The appellant while accepting the terms in Exhibit A insisted on the payment of the N3 million, only on seeing the Certificate of Occupancy and conducting a search “?as well as the deed of assignment”; that was interpreted as a counter offer which vitiated the contract.
?Supra Investment Ltd the owner subsequently demarcated and sold parts of the land in dispute to the 1st and 2nd respondents, and informed the appellant vide Exhibit F.
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At the trial the plaintiff/appellant sought the following reliefs:
1. A declaration that the agreement between the 1st defendant and the plaintiff for the assignment of the property measuring 12,000 square meters, lying and known as plot 785 Wuse II District Abuja covered by and more specifically described and delineated by the Certificate of Occupancy No. FCT/ABU/MISC.674 dated 15th November 1994 is enforceable by an order of specific performance.
2. An order of specific performance directing the 1st defendant to perform the agreement to assign to the plaintiff the property measuring 12.000 square meters lying and situated at Plot 785 Wuse II, District Abuja covered by the Certificate of Occupancy No FCT/ABU/MISC.674 dated 15th November, 1994 and to execute all documents necessary to facilitate such assignment on the terms contained in the defendant’s letter of offer dated 27th November 1992 and the plaintiff’s acceptance thereof by letter dated 4th December 1992.
3a. An order of this Honorable Court authorizing the plaintiff to pay the balance of the agreed consideration being the sum of N3,000,000.00 (Three Million) into this Honorable
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Court and a further order mandating the 1st defendant to receive the said sum of N3,000,000.00 (Three Million) from the registrar of this Honourable Court.
3b. An order of this Honorable Court compelling the 1st and 2nd defendants to hand over to the plaintiff the Original Certificate of Occupancy No. FCT/ABU/MISC.674 and all other documents of title/consents/approvals relating to the land situated at plot 785 Wuse II District Abuja in the possession of the 1st and 2nd defendants.
4. An order of perpetual injunction restraining the 1st and 2nd defendants, their officers, agents assigns or otherwise howsoever from interfering with plaintiffs possession of the said property in its entirety.
5. Damages in the total sum of N10,000,000.00
6. Costs of this action.
The trial Court refused to grant the reliefs sought, leading to this appeal on the following grounds shorn of their particulars:
GROUND A:
The learned trial Court erred in law and thereby occasioned a great miscarriage of justice when it held that:
“To my mind the 2nd and 3rd Defendants had no reason to suspect any 3rd party interest and the 1st defendant did not
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inform them of any. The 2nd and 3rd Defendants are innocent purchasers of Plots from a larger whole without knowledge of the plaintiff’s interest.
GROUND B:
The trial Court erred in law and thereby came to a wrong conclusion when despite finding as a fact and declaring “that there was in fact an enforceable contract of sale between 1st defendant and the plaintiff for the assignment of the property measuring about 12,000 square meters lying and known as Plot 785 Wuse II District Abuja covered by and more specifically described and delineated by the Certificate of Occupancy No. FCT/ABU/MISC 674 dated 15th November 1994” the learned trial Court felt itself unable to “order specific performance on the grounds that the order will cause severe hardships to the 2nd and 3rd Defendants”.
GROUND C:
The learned trial Court misdirected itself and thereby came to a wrong conclusion when it stated:
?That next question is whether the 2nd and 3rd defendants had notice or reasonably ought to have notice of the contract of sale between the plaintiff and the 1st defendant.”
GROUND D:
The learned trial Court erred in law and thereby
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occasioned a miscarriage of justice when it held that:
“The 2nd and 3rd defendants are innocent purchasers of plots from a larger whole without knowledge of the plaintiff’s interest. However, even if they were aware of the plaintiff’s interest in the land, it can be reasonable (sic) assumed that the plaintiff was a buyer like themselves.”
GROUND E:
The learned trial Court erred in law and thereby came to a wrong conclusion when it ordered that the 2nd defendant deposit the Certificate of Occupancy in respect of the land in dispute in Court and further ordered “the 1st defendant is to draw up a Deed of Assignment on behalf of the plaintiff. Furthermore the 1st defendant will draw up an agreement for joint custody for all the 3 buyers and the Certificate of Occupancy deposited in a Bank of the buyers choice.”
GROUND F:
The learned trial Court erred in awarding the sum of N100,000 as nominal damages.
?
From these grounds of appeal three issues were formulated for determination in the brief settled by P.I.N. Ikwueto Esq., SAN of counsel to the appellant, dated 16th of September, 2009 and deemed properly filed and served on the 7th March
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2012; the said issues are:
1. Whether the 2nd and 3rd defendants had any notice or ought to have reasonably had notice of the plaintiffs/appellant(sic) interest in the land in dispute and as such whether the 2nd and 3rd defendants could rightly be described as innocent purchasers.
2. Whether an order of specific performance in the circumstance of this case ought to have been decreed by the trial Court.
3. Whether the learned trial Court rightly grant reliefs not claimed by any of the parties before it.
The issues formulated for the 1st respondent in the brief settled by J. Agi Esq., SAN of counsel are fundamentally the same with those of the appellant, for the purpose of brevity and clarity the issues for determination are reframed thus:
1. Whether the 2nd and 3rd defendants were bona fide purchasers for value without notice.
2. Whether an order for specific performance can be granted in the circumstances.
3. Whether the trial Court rightly granted reliefs not claimed by any parties before it.
On issue one it is submitted for the appellant that the 2nd defendant admitted at the trial that she conducted a search and
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determined that the plot belonged to the 1st defendant, i.e. Supra Investment Ltd, while the 2nd defendant admitted that she saw development on parts of the land but did not make further enquiries from the 1st defendant; while the 3rd defendant admitted knowing only one title document in respect the plot in dispute, and that the land was not partitioned as at the time the portion was paid for.
Learned senior counsel referred the Court to JONES V. SMITH 1 HARA 60, DANIELS V. DAVIDSON 16 VES.249 and KABBA & ANOR V. YOUNG 10 WACA 135 at 139 and contended that notice of the land being in occupation of a person other than the vendor is notice to a purchaser that the person in possess on has some interest in the land, and a purchaser having notice of that fact is bound either to enquire about the interest or to give effect to it whatever it may be.
That the trial Court having found the existence of an enforceable contract between the appellant and the vendor, i.e. the first defendant, as per Exhibits B and C, was in error to hold that the 2nd and 3rd defendants had no notice of the contract of sale between the 1st defendant and the plaintiff.
?
That
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a purchaser who admitted seeing buildings on a portion of land offered to him for sale, and who refused to make enquires about the title of the vendor cannot be accommodated by a Court of equity; learned counsel referred the Court to CLAY IND. NIG. LTD V. AINA & ORS (1997) 8 NWLR part 516 at 234.
That the land in dispute is one plot measuring 12,000 square meters, and both DW2 and the 2nd respondent admitted at the trial that it had one document of title.
That this fact having been established the respondents had constructive notice of the appellants’ occupation of plot 785, and in view of the trial Court’s findings regarding the existence of an enforceable contract it still came into an obvious error by coming to the conclusion that the respondents were innocent purchasers for value without notice; learned senior counsel referred the Court to CRAYEM & ANOR V. CONSOLIDATED AFRICAN SELECTION TRUST LTD (1949) 2 WACA 443.
It is submitted for the 1st respondent in response that its evidence at pages 169, 171 and 172 to the effect that payment was made in respect of a vacant land after inspection was unchallenged.
?
That the finding of the
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trial Court to the effect that the 2nd and 3rd defendants were unaware of a 3rd party interest before purchasing the plots cannot be faulted, especially in view of the fact that a search conducted on behalf of the 1st respondent indicated that the land in dispute belonged to the 1st defendant without encumbrances.
That the Exhibits B and C cannot constitute notice to the whole world especially as they were not sent to the land registry; and the structures claimed to be on the land belonged to A.A. Oil Ltd, and were demarcated by a fence as is clear from pages 149 and 150 of the record, so that fact cannot be said to be enough to put the respondents on notice.
That the question of bona fide purchaser without notice was not an issue at the trial Court, and there is no evidence to show that the 1st respondent had any notice of a 3rd party interest; he referred the Court to BEST NIG LTD V. BLACKWOOD HODGE NIG. LTD. (2011).
?A purchaser who entered into possession of land under a contract of sale after payment of the purchase price acquired an equitable title of the land, which may be converted into a legal estate by specific performance; the
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equitable title can only be defeated by a purchaser of the land for value without notice of the prior equity, the operative word, it should be borne in mind is ‘without notice’, SEE ELEMA V. AKENZUA 2000 13 NWLR PT 683 PG 92 AND AMINU V. OGUNYEBI 2004 10 NWLR PT 882 PG 45.
For the purposes of the law in these circumstances it is important to note that cultivation of land, erection of a building line or fence, and even demarcation of land with pegs at its corners have all been held to be evidence of possession, see AJERO V. UGORJI 1991 10 NWLR PT 621 PG 1 AT PG 14 AND THOMPSON V. AROWOLO 2003 7 NWLR PT 818 PG.
Against this backdrop it is important to have recourse to the findings of the trial Court at page 306 of the record of proceedings that:
?At no time in this proceeding has any of the defendants denied that the plaintiff was in possession of 6000 square meters”; at page 309 to 310 of the record that:
“… it would be wrong to say that the plaintiff was not at all times in possession of the entire 12,000 square meters. It appears that several acts of possession has been exhibited by the plaintiff on the side of the plot 785.<br< p=””
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That the plaintiff restricted herself to one side of the property cannot be said that she had only acquired 6000 square meters. The plaintiff reserved the right to start her development from anywhere she deemed fit. Common sense dictates that she has to start from one end and progress if she so desires. The mere fact that she has built on only one part of the 12,000 square meters does not mean that she was not in possession of the whole plot.?
By the 1st respondents own admission at pages 171:
“On a physical inspection we discovered that the portion of the land which was indicated to us for sale was vacant. On part of the 12,000 square meters there is also a bungalow and 2 or 3 duplexes walled and demarcated” and at page 173 of the record that:
“…I did not take keen interest in what was going on in the duplex because there was a wall demarcating us…”
?
Now one is tempted to ask when the 1st respondent saw 2 or 3 duplexes “…on the part of the 12,000 square meters walled and demarcated…” was any enquiry made to find out the interest? Clearly none, because there was no keen interest in what was going on in the
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duplex
Also the evidence of DW2 at pages 171 to 172 of the record of appeal also shows that “the Certificate of Occupancy was in the respect of Plot 785. The bungalow and the duplexes were also on this plot 785?”
The sight of duplexes in the property in dispute ought to have served as notice to the 1st respondent of some other interest on the land in dispute, but no it didn’t; it is even argued for the 1st respondent that the structures seen on the land belonged to A.A. Oil Company Ltd.
No evidence supports the 1st respondent’s claim that the structures referred to belong to A.A. Oil Company Ltd; if anything it was the appellant who claimed to have sold 2000 square meters to the said A.A. Oil Company Ltd.
Generally speaking in property law, questions of priority may arise, and these may concern competing interests in the holding of the right of occupancy, and it is trite that competing interests generally rank according to the order of their creation; See BARCLAYS BANK LTD. V. BIRD (1954) CH. 274.
In OWOSHO V. DADA (1984) 7 SC 149, the Supreme Court per Aniagolu JSC held at 173 that:
“The law has been well and
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long settled, that where a person pays for land and obtains receipt for the payment followed by his going into possession and remaining in possession, equitable interest is created for him in the land such as would defeat the title of a subsequent legal estate purchaser with knowledge of the equitable estate in the land, that was affirmed to be the state of the law in ORASANMI v. IDOWU (1959) 4 FSC 40; (1959) SCNLR 97.”
The law attributes constructive notice to such a purchaser as a defendant, and goes even further to expect the purchaser of an adjoining land to make enquiries as to title from that other.
In ANIMASHUN V. OLOJO (1990) 6 NWLR (PT. 154) 111 AT 121- 123 SC, the SUPREME COURT, per Obaseki, JSC set out the law, and meaning of a bona fide purchaser for value without notice; especially its application, and what constructive notice stands for in the following words:
“Without Notice”, was held to mean: “He must have no notice of the existence of equitable interest. He must have neither actual notice nor constructive notice nor imputed notice.”
With regard to ?Constructive Notice? it was held that: a “…purchaser should
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inquire about equitable interest with no less diligence than about legal interest which they could ignore only at their own peril. The motto of English conveyance is caveat emptor; the risk of encumbrances is on the purchaser who must satisfy himself by a full investigation of title before completing his purchase. A purchaser would be able to plead absence of notice only if he had made all usual and proper inquiries, and had still found nothing to indicate the equitable interest.?
It is clear from the foregoing that the law requires a purchaser to make proper and adequate enquiry, not only to conduct a perfunctory legal search, as in this case, but also to visit the site of the plot before completing the purchase, and as of necessity, after …seeing duplexes…”, make further enquiries, which would have revealed the true position of things; see JIWUL V. DIMLONG (2002) LPELR-7083-CA.
The plaintiff did not have to place any caveat in the land registry as contended for the respondent, it is the responsibility of the respondents to be careful and aware of what is going on as far as the land in dispute is concerned; and Exhibits B and C are clearly
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not meant to be notices by any stretch of imagination.
Indeed the whole basis of the equitable principle of bona fide purchaser for value without notice is to protect a purchaser from the fraud of his vendor, see OMOSANYA v. ANIFOWOSHE (1995) 4 FSC Pg.94 at 99; but the rule goes further, in the sense that, if a purchaser fails to investigate title properly, he is assumed to have constructive notice of everything that he would have discovered had he investigated the whole title diligently; See ODWUKWE v. ADMINSTRATOR GENERAL (1978) 1 SC 25 at Pg. 30.
The respondents cannot be heard to say the issue of bona fide purchaser for value was not an issue at the trial, because it is clear from the record of proceedings that the issue was indeed raised severally at the trial, and even by the 1st respondent who for instance said “…if I have seen Exhibit B and C before the 9th July, 1997 I would never have bought the land”; and the trial Court found in part at page 314 of the record of proceedings that: ?…to my mind the 2nd and 3rd defendants had reason to suspect any 3rd party interest and the 1st defendant did not inform them of any…?<br< p=””
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The respondents do not clearly qualify as bona fide purchasers without notice by any standard; accordingly this issue is resolved in favour of the appellant, against the respondent.
On issue two it is submitted for the appellant that notwithstanding the finding of the existence of a an enforceable contract for sale of plot 785, over which the appellant was in possession the trial Court held it was unable to order specific performance on the ground that it will cause severe hardship to the 2nd and 3rd defendants, whom it found to be innocent purchasers for value without notice of the plaintiff’s equitable interest.
That it is wrong to describe the respondents as bona fide purchasers when the 1st respondent admitted seeing duplexes on this plot and did not make enquires about them.
Learned senior counsel submitted also that the 3rd defendant admitted that she continued construction even while the case was in Court in direct contravention of the doctrine of lis pendis; he referred the Court to BARCLAYS BANK OF NIG. LTD V. ASHIRU & ORS (1978) 6 & 7 at 123, F.A.T.B. V EZEGBU (1992) 1 NWLR part 220 at 724, AJOMALE V. YAUDAT 2 (1991) 5 NWLR
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part 191 page 266 and AMAECHI V. INEC (2008) 5 NWLR part 1080 at 227.
That the hardship for which the trial Court refused to order specific performance was self-induced, because the respondents having noticed the appellant s occupation, and the presence of buildings on a portion of the land in dispute should have refrained from construction during the pendency of the case.
That the hardship which will constitute a defense to a claim of specific performance must have existed at the date of the contract and not invented during the pendency of litigation; he referred the Court to NICHOLAS V. INGRAM (1958) N.Z.L.R 972.
That even though specific performance is a discretionary remedy none of the respondents pleaded nor sought any indulgence on the basis of hardship and the introduction of hardship as a defense was an invention of the trial Court.
In response it is submitted for the 1st respondent that specific performance is an equitable remedy purely at the discretion of the Court, and where it is impossible to grant the Courts will refuse to grant same; learned counsel referred the Court to INT. ILE IND, NIG. V. ADEREMI (1999) 8 NWLR part
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614 at 304.
That the appellant became aware in 1993 that her contract for 12000 square meters had been reduced to 6000 square meters but did nothing until 1997 when the 1st respondent made payment for its portion of the land; and the appellant now wants specific performance of a contract that was abandoned; learned counsel referred the Court to C.F.A.O V. BAMGBALA (1969) 6 NSCC 259 at 262.
Learned senior counsel submitted that the appellant who waited for four years to ask for specific performance of a contract is guilty of delay, and that is what informed the refusal by the trial Court; he referred the Court to UNIVERSAL VULCANIZING NIG. LTD V. IJESHA TRADING & TRANSPORT & ORS (1992) NWLR PT 266.
The doctrine of specific performance postulates that where monetary damages would be an inadequate compensation for the breach of an agreement, the vendor will be compelled to perform specifically what he has agreed to do. In BFI GROUP CORPORATION V. BUREAU OF PUBLIC ENTERPRISES (2012) LPELR-9339-SC the Supreme Court held: ‘It is the rendering as nearly as practicable of a promised performance through a judgment or decrees; a Court ordered
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remedy that requires precise fulfillment of a legal or contractual obligation when monetary damages are inappropriate or inadequate as when the sale of real estate or a rare article is involved. In essence the remedy of specific performance enforces the execution of a contract according to its terms.” Per FABIYI, J.S.C.
The land in dispute had clearly been sold to the 2nd and 3rd defendants, see page 315 of the record of appeal, where the trial Court held, “…there is no longer in existence the res to hand over to the plaintiff having been bought by the 2nd and 3rd defendant…”; who had gone ahead to developed same; and the appellant did not help by waiting for up to four years to ask for specific performance; this is evident from the fact that even though the appellant became aware in 1993 that her contract for 12,000 square meters had been reduced to 6000 square meters she did nothing until when the 1st respondent paid for its portion of the land in 1997; it is for such reasons that the Supreme Court held in OKONKWO V. OKONKWO & ORS (1998) LPELR-2487-SC that, “…In claims… for specific performance and for rescission of contracts, the special
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relief in equity is only given on condition that the plaintiff comes with great promptitude ? Any substantial delay after the negotiations have terminated, such as a year OR probably less, will be a bar. In cases of rescission the defendant may be altering his position in the belief that the contract is to stand, and the claim to rescind must be made promptly Per MOHAMMED, J.S.C.
The trial Court was also right, in the considered opinion of this Court to arrive at the conclusion that hardship will be suffered by enforcing the terms of the contract at this stage;
“…Specific performance is a discretionary remedy. This does not mean that it will be granted or withheld arbitrarily; the discretion is a judicial discretion and it is exercised on well settled principles. It means that in an action for the specific performance of a contract of the class usually enforced, the Court may take into account circumstances which could not be taken into account in an action for damages for breach of contract, such as the conduct of the plaintiff or the hardship which an order for specific performance will inflict on the defendant.” ENOJO v.
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SANUSI (2008) Pt.412 Pg.1084 @ 1089,
In UNIVERSAL VULCANIZING NIG. LTD V. IJESHA UNITED TRADING & TRANSPORT & ORS (1992) LPELR-3415-SC it was also held that:
“But a plaintiff will be left to his remedy at law if a decree of specific performance would inflict a hardship on the defendant. Consequently the principle is that specific performance will generally not be granted where damages would be an adequate remedy. There are exceptions. Also specific performance like all equitable remedies is discretionary and the discretion is exercised judicially according to settled principles. So that even where the contract is valid in law specific performance may be refused on general equitable principles. In other words the Court will only grant specific performance where it will be just and equitable to do so. It is not obtainable as of right like damages.? Per KUTIGI, J.S.C; See also OLOWU v. B. S. LTD (2010) 2 NWLR pt. 1178 Pg.310.
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So on this score the emphasis is clearly not on whether the respondents were bona tide purchasers for value without notice, they clearly were not, and that was settled while resolving issue one; but whether the
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trial Court was right in failing to exercise its discretion in favour of the appellant, to grant an order of specific performance, and this Court cannot help but agree with the trial Court for refusing to grant an order for specific performance, after having found that hardship will be occasioned.
This is the essence of discretionary power, which empowers the judge to do what he thinks right and proper in the circumstances of the case; see ASTRA INDUTRIES NIG. LTD V. N.B.C.I (1998) LPELR-565-SC where the Supreme Court held:
“Discretion means equitable decision of what is just and proper under the circumstance or a liberty or privilege to decide and act in accordance with what is fair and equitable under the peculiar case guided by the principles of law.” Per ONU, J.S.C.
It is the considered opinion of this Court that the trial Court exercised its discretion judicially and judiciously, and this Court does not see the need or necessity for interfering with a proper exercise of discretion; the Supreme Court had this scenario in mind when it held in DOKUBO ASARI V. FRN (2007) LPELR-958-SC that:
“The proper role of a Court of Appeal where there
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is a proper exercise of discretion is not to interfere with the decision. To do so merely on the ground that the appellate Court would have exercised the discretion differently is an assault on justice and not within the statutory powers of the Appeal Court.” Per MUHAMMAD, J.S.C.
This issue is accordingly resolved in favour of the 1st respondent, against the appellant.
Issue number three does not need to be belaboured, because the 1st respondent has conceded that issue to the appellant, that being so the issue is resolved in favour of the appellant, against the 1st respondent.
Even though two of the three issues for determination were resolved in favour of the appellant, and against the 1st respondent, the threshold issue is issue number two, and that was resolved in favour of the 1st respondent, that being so the appeal fails for that reason. The judgment of the trial Court is affirmed.
Parties to bear their respective costs.
CROSS APPEAL:
The Cross Appeal in this case was initiated by the Notice of Cross Appeal filed on the 5th of April, 2012, and deemed properly filed on the 18th of October, 2012 on the following grounds:<br< p=””</br<
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GROUND ONE:
The Learned Trial Judge erred in law when he held that ?it would be wrong to say that the plaintiff was not at all times in possession of the entire 12,000 square meters?.
GROUND TWO:
The Learned Trial Judge erred in law when he held that “with this confirmation by the 1st Defendant it can be deciphered that parties to the contract were at consensus ad idem that the Certificate of Occupancy was important to the conclusion of the contract terms”.
GROUND THREE:
The Learned Trial Judge erred in law when she held that “at no point in the transaction did the 1st Defendant indicate that she was ready with the documents and balance of N3 million (Three Million Naira) was not paid.”
From these grounds two similar issues were formulated for determination by both the Cross Appellant and the 1st Cross Respondent; the issue formulated in the brief settled by Joe Agi Esq., SAN of counsel to the cross appellant are more apt, this appeal will be determined on those issues with a little modification for clarity, and they are as follows:
1. Whether a perusal of Exhibit C and Juxtaposing it with Exhibit B did not
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amount to a counter offer or conditional acceptance thereby failed to create a contract between 1st Cross Respondent and Supra Investment Limited leading to the termination of the contract through Exhibit G.
2. Whether the 1st Cross Respondent can be said to be in possession of the whole 12,000 square meters of plot 785 C-G Wuse II District Abuja.
On issue one it is submitted for the cross appellant while referring to Exhibits B and C that the term introduced by the 1st respondent i.e. that the balance will be paid “…as soon as you indicate that you have the Certificate of Occupancy ready for sighting…to enable conduct of conclusive search of the tile…”, amounted to a counter offer or qualified or conditional acceptance.
Learned senior counsel while referring to LAWAL V. UBN PLC (1995) 2 NWLR part 378 at 31, DALEK NIG. V. OMPADEC (2007) 7 NWLR part 1033 at 402 and OKUBULE V. OYAGBOLA (1990) 4 NWLR part 147 at 723 and submitted that there was no acceptance of the offer made by Supra Investment Ltd.
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That there was no valid contract between the 1st Cross Respondent and Supra Investment Ltd from the contents Exhibits B and C, because a
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search presupposes that there is yet to be a contract.
That the acceptance of the contract was not unqualified, and so the 1st cross respondent cannot claim to have a valid contract of sale to preclude the cross appellant from buying the land, as the cross appellant is clearly a bona fide purchaser for value without notice; learned counsel referred the Court to INTERNATIONAL INDUSTRIES LTD V. ADEREMI (1999) 8 NWLR part 614.
In response it is submitted for the 1st cross respondent that the cross appellant was wrong to assume that accepting the offer i.e. Exhibit C on the condition that the balance will be paid as soon as the Certificate of Occupancy was obtained and appropriate search conducted amounts to a counter offer which vitiated the earlier offer.
That Exhibit G cannot be said to bring the contract between the 1st Cross Respondent and Supra Investment Ltd to an end, because at best it amounted to a breach of the contract between the 1st cross respondent and Supra Investment Ltd; learned counsel referred the Court to LIMAN V. MOHAMMED (1999) 9 NWLR part 617 at 132.
That Exhibit B was not made subject to contract because there was every
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intention by Supra Investment Ltd to transfer the whole of the 12,000 square meters to the 1 cross respondent, and that is what informed the why the 1st respondent was allowed to take possession and start development of the land with the knowledge of Supra Investment Ltd; learned counsel referred this Court to OGUNBAMBI V. ABOWAB (1951) 13 WACA 222 at 224.
It is very important for the effectual resolution of this issue to understand what a counter offer is in law, in order to determine whether or not Exhibit C amounted to a counter offer capable of vitiating Exhibit B.
An offer has to be accepted without further conditions, because any addition to or subtraction to the terms of an offer becomes a counter offer, and thus lead to a rejection of the offer; see BEST NIGERIA LTD V. BLACKWOOD HODGE NIG. LTD (2011) LPELR-776-SC.
In AKIYEMI V. ODUA INVESTMENT CO. LTD (2012) LPELR-8270-SC, the Supreme Court cleared any grey areas in the definition of what amounts to a counter offer when it held that:
“A counter-offer is an express and unequivocal rejection of the original offer by the offeror to the offeree. It cancels or destroys the original. It
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provides a clean slate, so to say, for the parties to renegotiate their forms of contract.” Per GALADIMA, J.S.C.
Now the question left for determination is whether Exhibit C was clear and unequivocal enough to be called a counter offer, and thus vitiated the terms of Exhibit B.
It is very important at this juncture to have recourse to the relevant portions of Exhibits B and C which for the avoidance of doubt read as follows:
Exhibit B: “we acknowledge receipt of earlier payment of N1,300,000 in respect thereof. The balance of N3, 000,000, is payable in full before the signing and exchange of documents.”
Exhibit C: “the balance of N3,000,000 will be paid as soon as you indicate that you have the Certificate of Occupancy ready for sighting with photocopy made available to enable the conduct of conclusive search of the title as well as the deed of assignment, and hold same pending payment of the full purchase price.”
Clearly from the content and character of Exhibit C it is self-evident that it is not an unequivocal revocation or renunciation of Exhibit B, if anything it reinforces it emphasizing that payment of the balance would be made
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upon proper verification; because title documents are never ever signed and exchanged without an ascertained certificate of title.
The terms in the offer i.e. Exhibit B were not varied in this case by Exhibit C; the legal effect of a counter offer is to repudiate or discharge the original offer so that it cannot subsequently be accepted by the offeree, and that was not the case here see OKUBULE V. OYAGBOLA (1990) 4 NWLR PT. 147 PG.723 and AFROTEC TECHNICAL SERVICE (NIG.) LIMITED V. MIA & SONS LIMITED (2000) 12 SC PT.11 PG.1.
The trial Court was right in the considered opinion of this Court in arriving at the conclusion that Exhibit C did not amount to a counter offer, and that clearly informed its clear finding at Page 300 that:
“the Court from all the evidence adduced by both the PW1 and DW1 deduced that there was a legally binding contract between the plaintiff and the 1st defendant as per Exhibits B and C. Exhibit C is not a counter offer, as it has not introduced anything new to both the 1st defendant and the plaintiff, which can ‘kill off’ the offer.” And also that page 314 of the record of appeal also that:
“Exhibits B and C
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have created a binding and enforceable contract between the 1st defendant and the plaintiff. The plaintiff and the 1st defendant are consensus ad idem as to all the terms of the contract.”
This issue is accordingly resolved in favour of the 1st Cross Respondent, and against the Cross Appellant.
On issue two it is submitted for the cross appellant that the 1st cross respondent was not in possession of the entire 12,000 square meters of land, having held herself to one side of the land fount by the trial Court.
That the finding by the trial Court in one breathe that the plaintiff was in full possession of the entire land, and in another breath that the plaintiff had confined herself to one side of the land was contradictory and therefore perverse.
That both the plaintiff and Supra Investment claim to be in possession of the plot in dispute, and so the one in possession has better title, i.e. Supra Investment Ltd, and was planning on selling to the 1st cross respondent, who is now claiming to have a better title than the person trying to sell to it; learned senior counsel argued this cannot be allowed to stand, he referred the Court to AROMIRE
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V. AWOYEMI (1972) 2 SC 182 and AMAKOR V. OBIEFUNA (1974) 1 ALL NLR 119.
Learned senior counsel contended that the 1st cross respondent has no title at all, much less a superior one; especially as there was no indication anywhere that consent of the minister was sought and obtained.
It is submitted for the 1st cross respondent in response that whether an act is sufficient to qualify as possession is a question of fact to be decided by the Court, learned senior counsel referred the Court to LADIPO & ORS V. AJANI & ANOR (1997) 8 NWLR part 517 at 367 and BASSIL V. FAJEBE (2001) 21 WRN at 85; and argued that the trial Court clearly determined that the 1st cross respondent was in possession of plot 785.
That Supra Investment Ltd having sold the land to the 1st cross respondent cannot at the same time be in possession of the land in dispute, especially after handing over possession to the 1st cross respondent who erected buildings thereon; learned senior counsel referred the Court to OVERSEAS CONSTRUCTION LTD V. CREEK ENTERPRISES LTD (1985) 2 NSCC Vol. 16 at 1381.
On the question of whether consent of the minister was sought and obtained
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learned senior counsel submitted it that this was an issue that is being raised for the first time on appeal without leave of Court, he urged the Court to discountenance same; and further contended consent is only due after deed of assignment is executed; he referred the Court to YARO V. AREWA CONSTRUCTION LTD (2007) 17 NWLR part 1063 at 374 and FBN PLC V. SONOGONUGA (2007) 3 NWLR part 1021 at 230.
That also this Court cannot re-appraise the evidence especially as the findings of the trial Court are not perverse, learned senior counsel referred the Court to SCCNG. LTD V. ELEMADU (2005) 7 NWLR part 923 at 83, ANYAKORA V. OBIAKOR (2005) 5 NWLR part 919 at 529 and AGUOCHA V. AGUOCHA (2005) 1 NWLR part 906 at 192.
The question of whether any act is sufficient proof of possession is indeed a question of fact, SEE WUTA-OFEI V. DANQUAH (1961) 1 WLR 1238 AT 1243, where it was held that:
“The type of conduct which indicates possession must vary with the type of land. In the case of vacant and unenclosed land which is not being cultivated, there is little which can be done on the land to indicate possession. Moreover, the possession which the respondent
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seeks to maintain is against the appellant who never had any title to the land. In these circumstances the slightest amount of possession would be sufficient.? Per PATS-ACHOLONU, J.C.A.
The trial Court found at page 306 of the record of appeal that:
“at no time in this proceedings has any of the defendants denied that the plaintiff was in possession of 6000 square meters. The 1st defendant is insisting that the plaintiff only had possession of about 6000 meters…”
Again at page 309 it further found:
“It would be wrong to say that the plaintiff was not at all times in possession of the entire 12,000 square meters.
It appears that several acts of possession has been exhibited by the plaintiff on the side of the plot 785.
That the plaintiff restricted herself to one side of the property cannot be said she had only acquired the 6,000 square meters. The plaintiff reserved the right to start her development from anywhere she deemed fit.
Common sense dictates that she has to start from one end and progress if she so desires. The mere fact that she has built on only one part of the 12,000 square meters does not mean that she
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was not in possession of the whole plot.”
Now it is very clear from these findings that the trial Court found the 1st cross respondent in possession of the plot in dispute, thus resolving the issue of possession of the land in dispute by the 1st cross appellant to all intents purposes.
This Court is in total agreement with the trial Court in this regard, and finds the evaluation of facts and conclusions impeccable; because not only was the 1st cross respondent in possession but went ahead and erected structures on the land.
This Court cannot help but agree with learned senior counsel for the 1st respondent that the issue of whether consent was sought and obtained from the minister was not an issue before the trial Court, and it cannot be sprung here, and now, at least not without leave of this Court, see ADIO V. STATE (1986) 2 NWLR (PT.24) 581; AJUWON V. ADEOTI (1990) 2 NWLR (PT. 132) 271 and OBIOHA V. DURU (1994) 8 NWLR (PT. 365) 631.
The trial Court is indeed better positioned to appraise the evidence before it, and ascribe to them the needed probative value, this Court is least equipped to embark on this venture, and where the trial
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Court had evaluated and appraised the evidence before it, impeccably as in this case, it is needless to embark on a fresh appraisal, in the absence of any perverse finding. See CHINDO WORLDWIDE LTD. V. TOTAL (NIG.) PLC. (2001) 16 NWLR (PT.739) 291, (2002) FWLR (PT. 115) 750 AND BOLANLE ABEKE V. STATE (2007) 3 SC PART 2 AT 105.
For these reasons, this issue too is resolved in favour of the 1st Cross Respondent, and against the Cross Appellant; and having resolved both issues against the Cross Appellant, the Cross Appeal fails for lack of merit, and it is hereby dismissed. The decision of the trial High Court of the Federal Capital Territory, dated 28th of December, 2004 is hereby affirmed.
Parties to bear their respective costs.
Other Citations: (2016)LCN/8777(CA)
