Chief Jonathan Mba-ede V. Peter Okufo (1989)

LawGlobal-Hub Lead Judgment Report

BABALAKIN, J.C.A.

This appeal deals partly with when the findings of fact of a trial Judge can be disturbed by an appellate court and partly with whether or not a person who has made part payment in pursuance of an oral agreement for alienation of land is entitled to a decree of specific performance.

The facts that gave rise to this appeal are that both the appellant who was plaintiff in the lower court and the respondent who was defendant in the said lower court are friends. By the story of the appellant as revealed in his statement of claim which accompanied his writ of summons, in 1975 the appellant leased two plots of land from Kuje Amuwo and Imore Family. The appellant erected an eight bedroom bungalow on one of the plots leaving the other plot vacant. Sometime in 1985, the appellant decided to sell the building on the land. He approached the respondent to ask him if he was interested in purchasing the building. The respondent said he was interested.

Negotiations followed and the purchase price for the building was agreed at N40,000.00. Immediately after the negotiation, the appellant fell ill. He went to his village in Anambra State. While the negotiations were on, the appellant quit all the tenants in the building. He locked up the place. In June, 1985, the appellant recovered from his illness. He came back to Lagos. He discovered that new tenants had been installed in the house, doors damaged, keys replaced and an open space in the building converted into bedrooms. On enquiry the appellant discovered that it was the respondent who broke into the house and put tenants therein. The respondent had also let the vacant plot of land to his Church- St. Stephen’s Catholic Church, Amuwo. The appellant asked the respondent why he took possession of his land and house when he the respondent had not made payment. The respondent promised he would pay the appellant the agreed N40, 000.00 in six months. The respondent did not pay neither did he vacate the land and building. The appellant decided to evict the tenants. This led to police intervention.

The respondent admitted before the Divisional Police Officer at Satellite Police Station that be had not paid any money on the land and building. The respondent was charged to court for conduct likely to cause a breach of the peace. The respondent has not quit the tenants in the building nor relinquished possession to appellant.

The appellant therefore issued a writ of summons on 17th March, 1986 claiming from the respondent as follows:-

”The appellant’s claim against the respondent is for:-

“(i) N50, 000.00 damages for trespass and damage committed by the defendant on the plaintiffs land and building thereon, situate lying and being at Amuwo, off Casco Street. Old Ojo Road, Lagos.

(ii) A Perpetual Injunction restraining the defendant, his agent and/or servants from continuing further acts of trespass on the said land with the building thereon. Annual Rental Value of the said land and building thereon is N1,200.00.

(iii) An order that the defendant do forthwith deliver up possession of the said property to the plaintiff.”

The respondent’s own side of the story is that the appellant and the respondent have been friends for a long time and were both in bakery and hotel business. In March, 1985, the appellant sought for and obtained a loan of N1,500.00 from the respondent. On 19th March, 1985, the appellant offered to sell to the respondent his house which he used as a hotel and an adjoining vacant plot of land. The respondent agreed to buy and the purchase price was agreed at N40,000.00 for the vacant plot and house. The respondent on diverse dates up to 26th April,1985 paid the sums totaling N17, 500.00. This in addition to the loan previously granted to the appellant brought the total figure up to N19,000.00.

The appellant moved out his brothers and or relations living in the house. He handed over the possession of the land and building to the respondent. The respondent to the knowledge of appellant let the vacant piece of land to his Church. The respondent with the appellant’s encouragement made structural alterations on the building. The appellant removed his things in the building some of which he sold to one Alhaji Adisa. The appellant was angry because the respondent could not pay the balance of N21,000.00 and the appellant disturbed the religious worship of the Church that occupied the vacant land. The appellant admitted that he did so because the respondent would not pay him the balance of N21,000.00.

On 25th November, 1985, the respondent sent N5,000.00 to the appellant in part payment of the outstanding balance of N21,000.00k. The appellant rejected this insisting that he wanted the balance of N21,000.00 paid in one bulk.

The respondent therefore counter-claimed as follows in paragraph 28 of his amended statement of defence and Counter-Claim thus:-