Leader Joseph Esenowo V. Miss Comfort Okon SAM (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

UZO I. NDUKWE-ANYANWU, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the judgment of the High Court of Cross River State sitting in Calabar delivered on 18th February, 2010 in suit No HC/285/2000. The appellant in this appeal was the Plaintiff in the court below. He sued the Respondent as Defendant and claimed as follows in his Amended Statement of Claim dated 23rd June, 2003.

(i) A declaration that the only binding, valid and legally enforceable contract between the parties herein is that wherein the Plaintiff was to pay N200,000.00 by unagreed installment and no time bar to the Defendant for the purchase of No.13 Edet Eyo Crescent Calabar.

(ii) A declaration that parties herein having mutually agreed that Defendant was to sell the property at No. 13 Edet Eyo Crescent, Calabar to the Plaintiff for N200,000.00 payable by installment, the unilateral and capricious increase of the purchase price by N500,000.00, by the Defendant when Plaintiff had paid a total of N171,000.00 was in extreme bad faith, capricious, unconscionable and wrongful.

(iii) A declaration that the unilateral and capricious increase of the purchase price by N500,000.00 after parties had mutually agreed for N200,000.00 constitutes a fresh offer and there being no offer by the Defendant as to how the said N500,000.00 was to be paid by the Plaintiff, Plaintiff was entitled to accept to pay same by instalments and having refused the offer for instalmental payment by the Plaintiff no valid or legally enforceable contract to pay N500,000.00 exist.

(iv) A declaration that parties agreed that the contract sum of N200,000.00 for the purchases of No. 13 Edet Eyo Crescent, Calabar was to be by installment with no time limitation and in any event the Defendant having by conduct accepted the said instalmental payment is not entitled to resile from same

(v) An order of Specific performance of the original contract by the Defendant by compelling the Defendant to perfect the assignment of the property situate at No.13 Edet Eyo Crescent, Calabar to the Plaintiff by signing and or executing a Deed of legal assignment of the aforesaid property the full purchase price as mutually agreed by the parties in the sum of N200,000.00 having been paid.

(vi) A declaration that the Plaintiff is entitled to the Statutory Right of Occupancy of the property known as and situate at No. 13 Edet Eyo Crescento Calabar.

(vii) And Order of perpetual injunction restraining the Defendant by herself, her servants, agents and/or privies from interfering with the Plaintiff’s ownership, quiet possession, use and occupation of the said No. 13 Edet Eyo crescent, Calabar.

The Appellant had entered into an oral agreement with the Respondent to buy her house in No. 13 Edem Eyo Crescent Calabar, in 1993 at a price of N200,000.00. The Appellant paid two separate instalments totaling N64,000.00 Exhibit A & A1. He lost his wife and did not pay anything till 1995 when he paid three instalments Exhibit B, B1 and B.2. The Respondent after persistent demands for the balance wrote Exhibit A dated 1st April, 1998 to the Respondent reviewing the sale price from N200,000.00 to N700,000.00. This the Appellant agreed for the delay in payment of the original contract price.

However, the Respondent insisted that she wants an outright payment or at the worst two instalments. The Appellant refused and insisted on instalmental payment over a period of five years. At this point, the relationship broke down. The Respondent thereafter gave the Appellant an option of paying for rent from 1993 till he gives up possession. The Appellant tabulated the rent, increases and communicated it to the Appellant. The Appellant being dissatisfied filed a suit in the High Court.

The Respondent in his defence in the court below filed on 8th April, 2004 his Statement of Defence and counterclaimed as follows:

1. A declaration that the defendant is the owner and entitled to Statutory Right of Occupancy in respect of the defendant of her property situate and known as No. 13 Edet Eyo Crescent, Calabar.
2. A Declaration that the agreement to sell to Plaintiff by defendant of her property situate and known as No. 13 Edet Eyo Crescent, Calabar in 1993 had been frustrated as the Plaintiff could not pay the agreed purchase price of N200,000.00 five years after, which was not contemplated by the Defendant and was still unable to pay the varied agreed purchase price of N700,000.00 in 1998.
3. A declaration that the Plaintiff is not entitled to Statutory Right of Occupancy of Defendant property situate and known as No. 13 Edet Eyo Crescent, Calabar as Defendant has not sold same to the Plaintiff.
4. A declaration that the Defendant is entitled to payment of rents by the Plaintiff to defendant from 1993 to whenever the Plaintiff delivers Possession to Defendant of her property situate and known as No.13 Edet Eyo Crescent, Calabar.
5. AN ORDER for the Plaintiff to pay Defendant the outstanding rent of N558, 000.00 in respect of defendant’s property occupied by Plaintiff as worked out and shown in paragraph 27 of this counter claim.
6. AN ORDER for the Plaintiff to deliver possession to Defendant of the property situate and known as No. 13 Edet Eyo Crescent, Calabar.
7. A perpetual injunction restraining the Plaintiff, his servants, agents, privies and or workman from regarding the property situate and known as No.13 Edet Eyo Crescent, Calabar as belonging to the Plaintiff or Plaintiff holding up himself or behaving as the owner of the said property which rightly belongs to the defendant.

After the exchange of pleadings, trial commenced. Both parties testified for themselves and called no other witness. At the end of trial, the learned trial Judge delivered her considered judgment and found for the Respondent.

The Appellant was dissatisfied and filed his notice and ten grounds of appeal. The Appellant filed his Appellant’s brief on 29th day of December, 2012. The Appellant articulated six issues for determination as follows: