Spera in Deo Limited V. Peccuno Mineral Industry Nigeria Limited & Anor (2016)
LawGlobal-Hub Lead Judgment Report
TOM SHAIBU YAKUBU, J.C.A.
The subject matter in dispute herein is a contiguous pieces of land at Nkpor in Anambra State previously owned by the 1st respondent. The said 1st respondent being in dire and urgent need of funds to liquidate its indebtedness to the bank ? Union Bank of Nigeria Abakaliki branch which held the papers to the said parcels of land in respect of Mortgage transaction with the 1st defendant and threatening to sell off the land if the debt was not amortized immediately, approached the appellant to buy the property in question. The appellant agreed to buy only 8 plots out of the entire 16 plots belonging to the 1st respondent. It is the contention of the 1st respondent that the agreed price for the said 8 plots with the appellant was N175,000.00 and to be paid in bulk to stave off the imminent clamp-down and foreclosure by the bank ? its creditors. The appellant on the other hand contended that what she agreed with the 1st respondent as purchase price was N125,000.00 and to be paid instalmentally. The appellant not forthcoming with the money with the urgency required, 1st respondent met the 2nd
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defendant who agreed to buy off the entire 16 plots at N400,000.00 and to pay same in bulk immediately. The deal was struck and the property including the earlier 8 plots the appellant had indicated interest in were purchased by the 2nd respondent and the papers with the bank were released to the 2nd respondent.
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The 2nd respondent, on her application for joinder to the action, was so joined as a party on 27th July, 1990. The appellant, in her amended statement of claim had sought the following reliefs, to wit:
(i) A declaration that having made a binding agreement with the plaintiff to sell the property to the plaintiff, the 1st defendant is not entitled to sell the said property situate at Nkpor-Obosi Road, Nkpor, shown numbered plots 9 ? 16 on survey plan No. GAV/As57/89 to the 2nd defendant.
(ii) A declaration that the 1st defendant is not entitled to assign, sell or transfer property comprised in and assured under the Certificate of Occupancy registered as No. 43 at page 43 in volume 1011 without the consent of the Military Governor of Anambra State under S. 22 of the Land Use Act 1978 having been first sought and obtained and as no
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such consent had been sought and obtained.
(iii) A declaration that the purported assignment and transfer of the said property by the 1st defendant to the 2nd defendant is ineffective, null and void as no consent for such assignment and transfer had been sought from the Military Governor of Anambra State under S. 22 of the Land Use Act 1978 and none had been obtained.
(iv) A declaration that the Deed of Assignment dated the 1st day of September 1989 made between the 1st defendant and the 2nd defendant made without the consent of the Military Governor of Anambra State first had and obtained as required by S. 22 of the Land Use Act 1978 is ineffective, null and void.
?AGAINST THE 1ST DEFENDANT AS FOLLOWS:
(v) A declaration that the 1st defendant is bound by law to take all lawful steps to execute all lawful and proper documents necessary to assure unto and vest in the plaintiff the right of occupancy in respect of all that property situate along Nkpor-Obosi Road, Nkpor, shown numbered plots 9 ? 16 on survey plan No. GAV/AS 57/89.
(vi) Specific performance of oral agreement made at Abakaliki between the months of July and August 1989 for
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the sale by the 1st defendant to the plaintiff of certain Leasehold property situate at Nkpor along the Nkpor-Obosi Road in the Idemili Local Government Area numbered plots 9 ? 16 in survey plan No. GAV/AS 57/89.
(vii) An order directing the defendant subject to all consents as may be required by law to take all lawful steps and to execute all lawful documents necessary to assure unto and vest in the plaintiff the right of occupancy in respect of all that property situate along Nkpor-Obosi Road, Nkpor, shown numbered as plots 9 ? 16 on the said survey plan No. GAV/AS 57/89.
(viii) Further or alternatively, the sum of N500,000.00 damages for breach of contract.
(ix) Alternatively, rescission of the said contract and the repayment of the deposit of N125,000.00 paid there-under with interest at 30% per annum from the 10th day of August, 1989.
(x) An injunction restraining the 1st defendant from selling or assigning the said property to any other person except the plaintiff.
On the 15th day of December 2006, paragraph 32 of the Amended Statement of Claim was with the leave of Court amended by adding a new sub-paragraph 7(a).
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The new sub-paragraph now reads:
(i) ?An order setting aside as null and void the purported sale/transfer of plots 9 ? 16 shown on survey plan No. GAV/AS 57/89, from the 1st defendant to the 2nd defendant, after the inception of and during the pendency of this suit. Sub-paragraph 8 was also amended by substituting the damages of N500,000.00 claimed thereat to now read ?N6 Million Naira only.?
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The 1st respondent filed an amended statement of defence and a counter claim, in opposition to the appellant?s claim. Thereafter, the suit proceeded to trial. The appellant called three witnesses and tendered into evidence, four documentary exhibits ? A, B, C & D. The 1st respondent called one witness and tendered into evidence, one documentary exhibit ? O. At the end of the trial, the Court below, per E. A. Ngene, J., on 23rd April 2007, dismissed the appellant?s claim. This appeal is against that decision. There are six grounds of appeal upon which the appeal was erected.
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The appellant?s brief of argument settled by J. H. C. Okolo, SAN., dated 30th March, 2008 and filed on 16th April, 2008 was
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deemed as properly filed and served on the same 16th April, 2008. He identified four issues therein for the determination of the appeal, as follows:
(i) Whether the finding that there was no valid contract between the parties can be justified on the pleadings and evidence canvassed at the hearing?
(ii) Whether the Court was right in holding that TIME was indeed of the essence in the performance of the contract and consequently that the Appellant was the party in breach of performance?
(iii) Whether in the light of the Appellants contentions that the subsequent sale of the subject property, to the 2nd defendant was caught by the plea of ?Lis alibi pendens?, the failure of the Court to make any pronouncement thereon did not occasion a miscarriage of justice?
(iv) Was the trial Court justified in refusing the award or any part of the 30% interest claimed on the event of a refund of what was paid on the contract, for the reason proferred?
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The 1st respondent?s brief of argument, settled by M. C. Okonkwo, Esq., was dated and filed on 6th March, 2009. In it, he nominated three issues for the resolution of the appeal,
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thus:
(i) Whether the trial Court findings concerning the validity or otherwise of the contract of sale of the land in dispute, mode of payment for same and time being of essence in its performance was perverse.
(ii) If the answer to the question in (i) supra is in the negative, whether the trial Court was justified in upholding the sale of the land to the 2nd defendant/respondent.
(iii) Whether the trial Court was right in refusing to award damages for the alleged breach of contract.
Having perused the pleadings of the parties, the pieces of evidence both parole and documentary, proffered at the Court below, the judgment of the said Court, the grounds of appeal and the issues formulated by counsel herein for the determination of the appeal, I feel that the real issues calling for the determination of the appeal are:
1. Whether there was a valid contract between the appellant and the 1st respondent in respect of the plots of land in question?
2. Whether the said contract was validly terminated or repudiated by the 1st respondent and if so,
3. Whether the appellant was entitled to damages against the 1st respondent.
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have perused the trenchant submissions of the learned senior advocate for the appellant and the learned counsel to the 1st respondent, in their respective briefs of argument. I am not rehashing the said submissions in this judgment, however, I have kept them in mind and focus and they shall be attended to as it is deemed appropriate, in the course of this judgment.
The law has remained well settled to the effect that for there to be a validly binding contract for the sale of land, the parties thereto must have reached a final and complete agreement on the essential terms of the contract, indicating namely:
(i) The parties to the contract;
(ii) the property to be sold;
(iii) the consideration for the sale of the property and
(iv) the nature of the interest to be granted.
The above features of a valid contract for sale of land was restated by the Supreme Court in Mini Lodge Ltd & Anor v. Chief Oluka Olaka Ngei & Anor (2009) 18 NWLR (pt. 1173) 254; (2009) LPELR ? 1877 (SC) at pp. 40 ? 41, per Adekeye, JSC, that:
?An offer must be accepted in order to crystallize into a contract. A contract of sale exists
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where there is a final and complete agreement of the parties on essential terms of the contract, namely the parties to the contract, the property to be sold, the consideration for the sale and the nature of the interest to be granted. Once there is agreement on these essential terms, a contract of sale of land or property is made and concluded.?
Further see: Gege v. Nande (2006) 10 NWLR (pt. 988) 256 at 284 ? 285; Biyo v. Aku (1996) 1 NWLR (pt. 422) 1.
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In the instant, there was consensus ad idem between the appellant and the 1st respondent, on the pleadings and evidence proffered for them, that 8 plots out of 16 plots of land belonging to the 1st respondent was to be sold to the appellant. The said plots of land are located at Nkpor in Anambra State. The sore point in the agreement between the said parties is in respect of the purchase price, otherwise known as the consideration, for the sale of the plots of land in question. The parties joined issues on it. The appellant averred that the consideration was in the payment of N125,000.00 and for which she made payments vide Exhibits A, B, C and D. On the other hand, the 1st respondent
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insisted that the purchase price for the 8 plots of land was N175,000.00.
Now, ?consideration? has been defined in BLACK?S LAW DICTIONARY, Eight Edn at page 325, to mean:
?Something (such as an act, a forbearance, or a return promise) bargained for and received by a promisor from a promisee; that which motivates a person to do something, esp. to engage in a legal act. Consideration, or a substitute such as promissory estoppel, is necessary for an agreement to be enforceable. See Restatement (second) of contracts …?
In order to determine whether indeed there was a binding contract between the appellant and the 1st respondent, the vital documentary exhibits that must be scrutinized and which was what the learned trial judge did, were Exhibits A, B, C, D vis-a-vis Exhibit O. See Shell BP Petroleum Co. Ltd v. Jammal Engineering (1974) 4 S. C. 33 at 72, which was applied by Fabiyi, JSC in BFI Group Corporation v. Bureau of Public Enterprises (2012) LPELR ? 9339 (SC) at pp. 30 ? 31, to the effect that:
?The final exercise of judgment of necessity involves a consideration of all the
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correspondence that is properly put in evidence by both sides ? all the correspondence tendered in order to establish the case and all that produced in Court in order to disprove the existence of a contract. It is only after such detailed consideration that a Tribunal can fairly come to a conclusion as to whether or not the parties actually arrived at an agreement. See: Thomas Hussey v. Hornea Rayne (1879) 4 app. Case 311. The task of analyzing the several letters and attempts to reconcile the one with the other is undoubtedly a very difficult one calling for the most serious examination of each and every one of several documents until the Tribunal is able to say whether a contract is indeed established …. ?
The learned trial judge, in the discharge of his onerous duty as mandated by the apex Court in Shell BP Petroleum Co. Ltd v. Jammal Engineering (supra) and re-echoed in BFI Group Corporation v. Bureau of Public Enterprises (supra), meticulously considered and analyzed Exhibits A, B, C and D vis-a-vis Exhibit O, at pages 109 ? 111 of the record of appeal, as follows:
?I have examined the exhibits referred thereto by the
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parties. I have equally acquainted myself with the circumstances under which they were made as borne out by the evidence of the witnesses in the case. There was agreement by the plaintiff and 1st defendant that Exhibit ?B? was made after their visit to the Manager of Union Bank Abakaliki where they had gone to confirm that upon the payment of the purchase price, the manager would handover and/or release the title document relating to the land in question to them. There was equally an agreement by the plaintiff and the 1st defendant that Exhibit ?B? was made by the 1st defendant?s accountant but it was signed by the M. D. Of the 1st defendant in the person of Chief P. C. Okolue. The said Exhibit stated that the sum of N50,000.00 paid was part-payment for the sale of 8 plots at Nkpor Nos: 9 ? 16 under Plan No. GAV/AS57/89. The 1st defendant maintained that the words ?Balance N75,000.00 was added without the knowledge of Chief P. C. Okolue after he had signed Exhibit ?B?. See paragraph 14 of the further further amended statement of defence of the 1st defendant.
There was agreement by the plaintiff and
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the 1st defendant that Exhibit ?C? was made by the same accountant of the 1st defendant. The 1st defendant however alleged that her said accountant colluded with the PW1 to make Exhibit ?C? on 4/9/89 since the said accountant knew that the plots at Nkpor had been sold to another person on 1/9/89 and that this conduct of the said accountant led to his dismissal from the employment of the 1st defendant. See paragraphs 15 and 16 of the further further Amended Statement of Defence.
Exhibit ?D? is the cheque stump for the sum of N35,000.00 post dated cheque said to have been issued to the 1st defendant by the plaintiff as the final payment for the said plots. The 1st defendant in both her pleadings and evidence of DW1 denied the receipt of the said cheque.
Exhibit ?O? is a letter written by the manager of Union Bank Abakaliki to the M. D. Of the 1st defendant reminding him of the discussion he had with him when he, that is, the M. D. Of the 1st defendant called at the Bank Manager?s office with PW1, Chief Okpalaecheruo. I deem it necessary to reproduce the 1st paragraph of the said letter, that is,
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Exhibit ?O?, it reads:
?We recall our discussion when you called with Chief Okpalaechelu ? the managing Director of Spera In Deo Ltd, who offered to buy the property at N175,000.00 according to you. You will remember that our head office confirmed that if the sum of N175,000.00 was lodged into your account, the Certificate of Occupancy and the relative documents for the above property would be released.?
It must be noted that PW3, in his evidence stated that he accompanied the PW1 and the M. D. Of the 1st defendant when they went to the Union Bank. The discussion referred to in Exhibit ?O? would therefore be said to have been made by the M. D. of the 1st defendant to the manager of Union Bank in the presence of PW1 and PW3.
The law is settled that once there is a version of evidence opposed to other versions of the evidence by the opposite party, no matter how such evidence by the adversary be extracted, there is a challenge. The two conflicting versions of the evidence on the given issue or point not being complimentary but mutually exclusive and conflicting, then the one version challenges the other.
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See the case of EJILEMELE vs. OPARA (1998) 9 NWLR (pt. 567) 587 Ratio 17.
The two versions of the story as regards the purchase price, that is, N125,000.00 as stated by the plaintiff and her witnesses and N175,000.00 as averred by the 1st defendant and DW1 are mutually exclusive and conflicting. The implication therefore is that either the plaintiff and the 1st defendant are not ad idem as to the purchase price of the 8 plots, that is, plots 9 ? 16 at Nkpor or that one of them is not telling the Court the truth. If the plaintiff and the 1st defendant were not ad idem as to the purchase price of plots 9 ? 16 as shown in Exhibit ?A? that is, Plan No. GAV/AS. 57/89, it then means that one of the essential terms for the existence of a valid contract for the sale of land is absent. I therefore hold in view of these conflicting evidence that there was no valid contract for the sale of plots 9 ? 16 at Nkpor, reached between the plaintiff and the 1st defendant as they were not ad idem as to the purchase price of the said plots.?
?I must say that the analysis of Exhibits A, B, C and D along with Exhibit O, as recounted
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above, and the conclusion reached by his Lordship, that there was no consensus ad idem between the appellant and the 1st respondent, in respect of the contract in question, is a critical and major deficit to the validity of the said contract. I find the findings by the learned trial judge on the point, as unassailable. I, too hold that there was no valid and binding contractual agreement between the appellant and the 1st respondent with respect to the sale of the 8 plots of land belonging to the 1st respondent and situate at Nkpor, in Anambra State.
I am afraid, the resolution of this vital issue in favour of the 1st respondent against the appellant, has knocked off the bottom, from this appeal. I feel it will be tantamount to an academic exercise for me to consider the question of repudiation of the said contract and of damages to the appellant.
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I am satisfied that the learned trial judge, having dismissed the appellant?s claim, was right when he fairly and justly ordered that the sum of N90,000.00 paid by the appellant to the 1st respondent, be refunded to her ? the appellant. In essence, the appeal is dismissed as lacking in merits.
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The judgment of E. A. Ngene, J., in re Suit No. AB/78/89 delivered at the Ebonyi State High Court of Justice, holden at Abakaliki, on 23rd April, 2007, is affirmed.
Each side to bear own costs.
Other Citations: (2016)LCN/8901(CA)
