Florence Achonu V. Oladipo Okuwobi (2017)

LAWGLOBAL HUB Lead Judgment Report

PAUL ADAMU GALINJE, J.S.C.

By an amended statement of claim dated and filed on the 29th day of October, 1993, the Appellant herein, who was the plaintiff at the High Court of Lagos State, claimed against the Respondent the following reliefs:-

“1. Specific performance of the contract for the sale of the property situated at and being (sic at) No. 65 Bode Thomas Street, Surulere, Lagos by executing and doing in favour of the plaintiff all necessary acts, deeds, forms and things for the due vesting and registration of ownership of the said property in the plaintiff and obtaining and delivering to the plaintiff a valid copy of his tax clearance certificate and of all other documents necessary for supporting an application for change of ownership in favour of the Plaintiff.

2. Mesne profits in the sum of N150,000.00 per annum with effect from 1st August, 1992 in respect of the ground floor flat at 65, Bode Thomas Street, Surulere, Lagos State until possession is given up.”

This amended statement of claim is at pages 67 – 75 of the record of this appeal. By his amended statement of defence

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dated 15th February, 1994 and filed on the 17th February, 1994, the Respondent as defendant at the trial Court, denied liability. Issues having been joined, the case proceeded to trial. At the end of the trial and addresses by learned counsel for the respective parties, the trial Court in a reserved and considered judgment delivered on the 13th February, 1997 granted to the Appellant all the reliefs she sought. The Respondent herein was thoroughly dissatisfied with the decision of the trial Court. Being aggrieved, he appealed to the Court of Appeal, Lagos Division where the decision of the Lagos State High Court was reversed in favour of the Respondent in a reserved and considered judgment delivered on the 14th July, 2005. The present appeal is against the decision of the Court of Appeal Lagos. The Appellant’s notice of appeal at pages 326 – 329 of the printed record of this appeal, dated 7th October, 2005 contains five grounds of appeal.

Parties filed and exchanged briefs of argument. MR. DOTUN ODUWOBI, learned counsel for the Appellant distilled three issues for determination of this appeal as follows:-

“i. Whether Ground (vi) contained in the notice

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of appeal filed by the defendant before the Court of Appeal ought not to have been struck out for want of competence.

ii. Whether the Court of Appeal was correct in its conclusion that the defendant’s tax clearance certificate had not been made an issue between the parties and whether the production of the said certificate by the defendant was not crucial or significant to the performance of the sale agreement.

iii. Whether the Court of Appeal was correct in treating time as being of the essence of the agreement between the parties. If not, then whether there was justifiable basis for the learned justices of appeal to have quashed the lower Court’s order for specific performance.”

MR. ADEWUMI R. FATUNDE, learned counsel for the Respondent issued a preliminary objection to the competence of the 2nd, 4th and 5th Grounds of Appeal on the ground that they were filed contrary to the provisions of Section 233(2) and (3) of the 1999 Constitution of the Federal Republic of Nigeria. Learned counsel argued the preliminary objection at pages 7 – 8 of the Respondent’s brief of argument, and thereafter he formulated three issues for determination of this

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