R. O. Sanusi Vs I.a. Daniyan & Ors (1973)

LawGlobal-Hub Lead Judgment Report

COKER, J.S.C. 

The Appellant was the plaintiff in an action which was tried in the High Court, Lagos, (Dosumu, J.), and in which his writ is endorsed as follows:-

“The Plaintiff claims against the defendants specific performance of an agreement of sale made between the plaintiff of one part and the defendants on the other part dated the 12th August, 1966, in respect of a piece or parcel of land the building thereon situate lying being and known as No. 5A, Paul Okuntola Street, Idi-Araba, Federal Territory of Lagos.

The defendants have refused failed and/or neglected to execute a deed of conveyance in favour of the plaintiff in respect of the said transaction despite the readiness and willingness of the plaintiff to any the balance of the purchase price upon the execution of a deed of conveyance in his favour.

Alternatively the plaintiff claims against the defendants the sum of 1,975:s:d being special and general damages suffered by the plaintiff for the loss of his bargain occasioned by the refusal of the defendants on the contract of sale in favour of the plaintiff.”

The plaintiff later filed a Statement of Claim in which he stated that sometime in 1964 he made some payments of money to the defendants for the purchase of land at Mushin, originally belonging to their late father, one Mallam Imoru Daniyan and that Imoru Daniyan died in January, 1965; that after, some of his children had given him a conveyance of the land which he purported to buy from them, he discovered that one Alhaji Elias was also claiming the land and that on approaching the defendants who are the children of Mallam Imoru Daniyan, they promised to sell their family property No. 5A Paul Okuntola Street, at Idi-Araba, to the plaintiff for the sum of 1,750.

The Statement of Claim further avers that the defendants have failed or refused to execute to the plaintiff a conveyance of the said property at No. 5A Paul Okuntola Street, whilst still retaining the moneys paid to them by the plaintiff, and that in those circumstances the plaintiff was asking for an Order of Specific Performance or for Damages for Breach of Contract of Sale of the property. The defendant filed a Statement of Defence in which they denied ever getting any moneys from the plaintiff or ever agreeing to sell to him the firmly property at No. 5A Paul Okuntola Street, Idi-Araba, as claimed by the plaintiff.

Evidence was given at the trial by the plaintiff and his two witnesses and on the side of the defence by the 3rd defendant. The agreement to sell the landed property at Mushin was produced in evidence as Exhibit A, and when that purported agreement flopped, a new agreement was entered into and the subsequent agreement to sell No. 5A Paul Okuntola Street, Idi-Araba to the plaintiff for the sum of 1,750 was produced in evidence as Exhibit E. The plaintiff testified in the course of his evidence that the documents of title to the property No. 5A Paul Okuntola Street, Idi-Araba, i.e., Exhibit F, F1 and F2 were handed over to him by the 3rd defendant more or less immediately before the signing on execution of Exhibit E. In the course of a reserved judgment, the learned trial Judge came to the conclusion that the story set up at the trial by the defendants that the document Exhibit E was executed by them under duress was not true, and he rejected it. He observed on this point as follows:

“It is to be noted, however, that this was not their defence on the pleadings. The defendants on the pleadings flatly denied entering into an agreement to sell the property at 5A, Paul Okuntola Street, to the plaintiff. But after hearing both sides on this matter, and closely examining Exhibit “E”, I am satisfied that the third defendant was lying. I accept the evidence of the plaintiff and his witness that Exhibit “E” was executed in the Chambers of a Solicitor at Olorunsogo, and by all the signatories as free agents.”

The learned trial Judge then referred to the several payments made by the plaintiff to the defendants or to their late father and concluded that the plaintiff had not yet paid the full purchase price of the property, although he had executed a Promissory Note to the defendants to do so “immediately they execute a Deed of Conveyance” to him in respect of the said property. The learned trial Judge then observed as follows:-

“But out of the amount of 1,186:17s:6d paid, the sum of 886:17s:6d was paid in 1964 during the lifetime of Imoru Daniyan, the father, and the further sum of 300 paid after his death to the five of the defendants was in August, 1966. The plaintiff now seeks to import into this new transaction i.e., sale of 5A, Paul Okuntola Street, Idi-Araba a consideration which was in the past. It is the law that past consideration will not support a contract which is sought to be specifically performed. Robertson v. St. John, Vol. 29 English Reports at page 81. The plaintiff therefore will be left to his remedy at law, if any. As I have held earlier, there has been a valid contract of sale which no doubt the defendants have breached by their refusal to complete by not executing the deed of conveyance as promised in Exhibit “E”. For this they will be liable in damages.”

The learned trial Judge then proceeded to award to the plaintiff damages in the caustic sum of 42 with 50 guineas costs.

The plaintiff has appealed to this court against that judgment, and his complaint before us is, the judgment is not supported by the evidence in the case. Learned counsel for the plaintiff contends that there was sufficient evidence accepted by the learned trial Judge himself to warrant an Order of Specific Performance by executing the Deed of Conveyance prepared by the plaintiff and produced in evidence in the course of the trial as Exhibit J (or Exhibit J1). For the defendants the only argument put forward before us is the to the effect that the property at No. 5A Paul Okuntola Street, was important to the defendants and that no money passed under the document produced in as Exhibit E.

We observe first and foremost that there was a valid contract for the sale of the house i.e., No. 5A, Paul Okuntola Street, Idi-Araba between the plaintiff and the defendants. The learned trial Judge said so in his judgment, he also stated that he believed and accepted the evidence that the document Exhibit E was signed by the defendants voluntarily and not under duress as they falsely tried to suggest to him. The document Exhibit E after reciting the names of the defendants states so far as is material that-

“For ourselves and on behalf of the entire family of Mallam Imoru Daniyan (deceased) our late father and the owners by inheritance from our said late father all that piece or parcel of land and house thereon known as No. 5A Paul Okuntola Street, Idi-Araba Federal Republic of Nigeria sell to Rasaki Olajide Sanusi Importer and Exporter of No. 2, Sanusi Street, Mushin Western Group of Provinces, Nigeria for the sum of 1,750 (one thousand seven hundred and fifty pounds) sterling Nigerian currency the said property above described measuring 54.5 feet by 122.6 feet by 39.2 feet by 120.9 feet and the building thereon consisting of 8 rooms lying and being at No. 5A, Paul Okuntola Street, Idi-Araba Federal Republic of Nigeria.

We hereby certify that we received the sum of 1,750 (One Thousand Seven Hundred and Fifty Pounds Sterling) Nigerian currency from the said purchaser Rasaki Olajide Sanusi being the agreed full purchase price of the said property and we hereby covenant with said purchaser to indemnify the purchaser from all losses that he may sustain in the case his title to the said property is impugned or if any court of law shall declare his title to the said property void in consequence of this sale to him.
We promise to execute a deed of conveyance in favour of the said purchaser Rasaki Olajide Sanusi as soon as a deed of conveyance is presented for our signature and or thumb impressions.”

In our view the document Exhibit E is conclusive of the defendants’ case. The learned trial Judge obviously heard evidence to the effect that the plaintiff still had to pay to the defendants an amount of 639 or N1278 for which he gave to the defendants a Promissory Note admitted in evidence as Exhibit G. But with respect the learned trial Judge failed to give the document Exhibit E the full meaning and importance of that document. The document clearly states that the agreed price of the property No. 5A Paul Okuntola Street, Idi-Araba was 1750 and that that amount had been paid by the plaintiff to the defendants and by Exhibit E the defendants “certified” that they had indeed received this amount in Nigerian Currency. If any moneys are owing to the defendants their course is to pursue Exhibit G and clearly they are completely estopped by the contents of Exhibit E from denying that they had received the full purchase price of the property in question.

There was no dispute that the property No. 5A Paul Okuntola Street, belongs to the defendants after the death of their father Mallam Imoru Daniyan. There was an agreement to sell this property to the plaintiff and the defendants executed Exhibit E for this purpose, and as evidence of that agreement between them. The learned trial Judge found and held that Exhibit E was made voluntarily and we are in no doubt ourselves that it was indeed so made. There was evidence from the series of correspondence exchanged between the solicitors to the parties that the defendants were no longer willing to execute a Deed of Conveyance; i.e. Exhibit J (or Exhibit J1) prepared at the instance of the plaintiff for the transfer to him, the plaintiff, of the property by the defendants. There was therefore no reason whatsoever for the learned trial Judge to have refused to make an Order compelling the defendants to execute in favour of the plaintiff the Deed of Conveyance of the said property.

We are convinced that the learned trial Judge did not draw the correct inferences from the contents of the document Exhibit E, and that for this purpose his judgment is not supported by the evidence which clearly he had before him and which rightly he had accepted.

The appeal therefore succeeds and it is allowed. The judgment of the High Court, Lagos State in Suit No. LD/303/67 including the order for costs is set aside. We make the following orders:-

1.     We enter judgment for the plaintiff on his claim for specific performance and order that the defendants do forthwith specifically perform the contract between them and the plaintiff evidenced by the document Exhibit E. This shall be the judgment of the court.

2.     We order that the defendants each and everyone of them do execute within 14 days hereof or such further time as the High Court, Lagos, may permit them, the plaintiff’s Deed of Conveyance put in evidence as Exhibit J (or Exhibit J1) and that the court below do carry out this Order.

3.     We order that the defendants should pay to the plaintiff the costs of this action fixed in the court below at N190 and in this court at N124.

Other Citation: (1973) LCN/1724(SC)