Bola Ominiyi V. Jacob Adegboyega Alabi (2015)

LAWGLOBAL HUB Lead Judgment Report

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.

This is an appeal against the judgment of the Court of Appeal, Ibadan Division delivered on 9/7/2003 allowing in part the appellant’s appeal from the judgment of the High Court of Osun State, Osogbo Judicial Division delivered on 3/3/1997. The part of the judgment complained of as stated in the Notice of Appeal filed on 3/10/2003 is “that part relating to the refusal of the relief for specific performance based on the date stated on Exhibits A & B.”

A brief summary of the facts that led to the decision complained of are as follows: Sometime in 1993, the appellant purchased a parcel of land with a completed building of 4 flats thereon from the respondent at Osogbo, Osun State for N350,000.00. A sale agreement was prepared and executed by the parties (Exhibit E). In furtherance of the agreement the respondent also executed Exhibit A, titled “acknowledgment/ratification document”. Letters of introduction/notice to quit (Exhibits C and C1) were written to the tenants of the building introducing the new owner. They were signed by the respondent. It was the appellant’s case that the respondent failed to obtain the Governor’s consent for the purpose of effectively transferring title of the property to him. He therefore instituted an action against him before the High Court of Osun State, sitting at Osogbo by a writ of summons dated 3rd April, 1995. By paragraph 12 of the statement of claim he sought the following reliefs:

1. Specific performance of an agreement between the plaintiff and the defendant dated 9th October, 1993 for the sale by the defendant to the plaintiff of all that piece or parcel of land measuring approximately 1332.005 square metres with the buildings thereon consisting of 4 flats and one uncompleted flat situate, lying and being at old Ikirun Road, covered by survey plan no. RAB/655/OY/59.
2. An order directing the defendant to procure and tender to the plaintiff within thirty days from the date of judgment the consent of the Military Governor/Administrator of Osun State with a view to register deed of assignment.
3. An order directing the defendant to give account of all monies received as rents on the plaintiff’s property from December 1995 till the date of judgment.
4. An order of perpetual injunction restraining the defendant by himself, through his servants, agents, or any person however deriving authority from the defendant from dealing with or interfering with the plaintiff’s occupation and peaceful enjoyment of the property.

The respondent, an accountant, denied any intention to sell the property to the appellant, His case was that he did not know the appellant before the transaction. That he approached one Mr. Adebagbo, PW1, who operated a finance company for a loan. That he deposited his plan and title documents with the said Mr. Adebagbo as security for the loan. When the money was ready PW1 insisted that he should sign Exhibits E & A. According to him, he was initially reluctant to sign when he realised that it was an agreement for the sale of his property. Although he signed Exhibits E, & C & C1, he claimed that he signed upon a misrepresentation by agents of the appellant, Mr. Adebagbo and one Alhaja Abeke Babatunde (pw2), that the executed documents would be destroyed if he repaid the loan within the agreed three months.

The parties called witnesses and tendered documents. At the conclusion of the trial, the learned trial judge held that the transaction between the parties was an agreement for a loan and not for the sale of land. He however declined to exercise his discretion to grant an order for specific performance on the ground that there was a misrepresentation to the defendant by PW1 that Exhibits A & E, which he was persuaded to sign, were merely security for the loan and not intended to transfer ownership. The appellant’s claims were accordingly dismissed.

On appeal to the Court of Appeal Ibadan Division, the lower court allowed the appeal in part. It disagreed with the trial court on the finding that the respondent signed Exhibits A & E as a result of misrepresentation. It however upheld the trial court’s refusal to make an order of specific performance but on different grounds – that the claim was statute barred because it had been proved at the trial that Exhibit E, prepared in 1993, was backdated to 1977 in order to deceive the Governor into giving his consent to the transaction in the belief that the transaction took place before the promulgation of the Land Use Act of 1978.

The appellant, dissatisfied with the part of the judgment refusing to make an order for specific performance, filed a Notice of Appeal containing two grounds of appeal. The grounds are reproduced hereunder as follows:

GROUND 1: The learned Honourable Justices of the Court of Appeal erred in law when they held as follows:

“I hold that Exhibit A is unenforceable as an agreement as it seeks to deceive; same is also barred from being enforced in a court of law pursuant to the provisions of Oyo State Statute of Limitation”.

PARTICULARS OF ERROR IN LAW:

1. The decision of the court was incompetent as there was no ground of appeal which raised the matters pronounced upon by the court.
2. There was no cross appeal or a notice of the respondent to contend that the decision of the High Court be affirmed on those grounds.
3. The appeal was partly dismissed on the ground raised by the court suo motu, without every opportunity of fair hearing granted to the appellant.
4. The decision of the court occasioned a grave miscarriage of justice.

GROUND 2: The learned Justices of the Court of Appeal acted without jurisdiction and erred in law when they refused to grant the appellant’s reliefs of specific performance and when the court did not fully agree with the decision of the trial court for refusing the order for specific performance.

PARTICULARS OF ERROR IN LAW:

1. The grounds for refusing the order of specific performance were not competent before the Court of Appeal and the court was bound to discountenance the matters relied on.
2. The Court of Appeal was bound only by the grounds of appeal and the issue properly raised therein.
3. The reasons and reasoning of the trial court for refusing the order for specific performance was not fully agreed with by the Court of Appeal.

The parties duly filed and exchanged their respective briefs of argument in compliance with the rules of this court. The Appellant’s Amended Brief of Argument settled by KEHINDE OGUNWUMIJU ESQ, was deemed properly filed on 29/4/2014, while his Reply Brief was filed on 11/7/2014. The Respondent’s brief, settled by MESSERS OLUWAGBEMIGA OLATUNJI and OLUMIDE OLUJINMI was filed on 18/6/2014. At the hearing of the appeal on 9/12/2014, KEHINDE OGUNWUMIJU ESQ., learned counsel for the appellant and OLUMIDE OLUJINMI ESQ., learned counsel for the respondent adopted their briefs and urged their respective positions on the court.

The appellant distilled a single issue for determination thus: