Abdu Manya V. Alhaji Iliyasu Idris (2000)
LawGlobal-Hub Lead Judgment Report
SALAMI, J.C.A.
This is an appeal against the decision of Tani Yusuf Hassan, J., of the Kano State High Court of Justice, sitting in Kano, in suit No. K/402/94 delivered on the 5th December, 1996, in an action brought by the Respondent, as the Plaintiff against the Appellant, as Defendant, claiming five declaratory reliefs and damages for trespass. Pleadings were filed, exchanged and settled at statements of claim and defence. The plaintiff testified on behalf of himself and called two other witnesses. On the other hand, the defendant testified and called four other persons as witnesses for defence. Learned Counsel for the respective parties addressed the Court. The learned trial Judge, in a reserved and considered judgment, found that the consideration for the contract of sale of land between the parties had failed and granted the Respondent possession of the property in dispute in addition to an award of N20,000.00 damages for trespass.
Dissatisfied with the judgment, the Appellant appealed to this Court on 7 grounds of appeal.
In accordance with practice and procedure of this Court, briefs of argument were filed and exchanged. The Appellant’s brief was filed out of time on 17th February, 1998 and was regularised by extending the time to file and deeming the same as properly filed and served on 24th June, 1998. The undated Respondent’s brief was filed within time on 30th July, 1998. The Appellant, in his brief of argument, formulated 3 issues while the Respondent framed 4 issues in his brief of argument.
The issues framed for determination in the Appellant’s brief of argument read as follows:-
Is the trial Court not under a duty to consider and determine all the issues placed before it for determination and whether the failure of the trial court to decide on all the crucial issues that arise in the pleadings of the parties and raised before it for determination did not amount to a denial of fair hearing or fair trial?
- Whether there has been a failure of consideration in respect of the contract for the sale and purchase of the mud house?
- Whether from all the circumstances of this case and taking the pleadings and evidence on it as a whole; the trial Court is right in declaring the Appellant, a trespasser, and awarding the sum of N20,000.00 against him as damages for trespass?”
The Respondent identified four issues as calling for determination in this appeal. The 4 issues submitted in the Respondent’s brief for determination are:-
“1. Whether totality of evidence can be said not to have been considered when the finding of the Court is expressly based on the testimony of the plaintiff’s witnesses as supported by defence witnesses.
- Whether an appellant given adequate and unhindered indulgence to state his case in due compliance with the procedure can complain of being deprived fair hearing/trial.
- Whether a party to a contract of sale of land has a right to rescind a contract on account of breach of payment of a consideration at a time agreed for such payment and whether a consideration can be said to have failed on account of the failure of consideration, when the contract is finally rescinded.
- Whether a party to a contract who fails to honour his promise to pay a consideration at a stipulated time can be said to be a trespasser on account of his occupation of the landed property which is the subject matter of sale”.
The issues calling for determination, in my respectful opinion, in the main, are the right of the vendor when the purchaser defaults in paying the balance of the purchase price as well as the right of the owner against a person who came in possession in course of a Tenancy Agreement. These two issues are adumbrated in the Appellant’s issues 1 and 3 as well as issues 3 and 4 of the Respondent’s brief of argument. It is apt, at this stage, if I may state, albeit succinctly, the facts of this case. The Appellant was a tenant of the Respondent in respect of a premises held by the Appellant as a deemed holder of statutory right of occupancy at Unguwa Uku, Kano. During the subsistence of the tenancy, in or about 1990, the Respondent offered for sale and the Appellant agreed to buy the property for N16,000.00. The appellant made a part payment of N14,000 and promised to pay the balance of N2,000.00 within 10 days. At the expiration of the 10 days, the Appellant failed to make good his undertaking and demanded for extension of time which was granted. The default persisted, inspite of several demands, for a period of 36 months. The Appellant eventually asked for refund of his N14,000.00 which he refused to collect when the respondent produced the money.
The Respondent sought the intervention of the wardbead whose intervention did not achieve amicable settlement. The Respondent had to resort to litigation by suing at Waje Area Court, Kano for an order formally setting aside the transaction and ordering the Appellant to accept his deposit or part payment of N14,000.00. The Court ordered the deposit of the money during the pendency of the case. The case was decided against the Appellant who was thereby aggrieved by the decision of the Court and appealed against it to the Upper Area Court, Kano but not after he had taken his money placed on deposit in the Court.
The Upper Area Court heard, allowed the appeal and ordered a retrial which was stalled by an order of prohibition restraining the Court from rehearing the case, on the ground of exceeding its jurisdiction, by entertaining a matter pertaining to title to land situate and lying in an urban area, a matter that is exclusively reserved to the High Court.
Consequently, the Respondent brought the action resulting in the instant appeal before the High Court claiming the restoration of his title on the ground of failure of consideration or rescission of the sale transaction on account of Appellant’s failure to make good his undertaking to pay the remaining purchase price within 10 days. The Appellant, on the contrary, contended that the contract entered into by the parties was complete and absolute and was no longer open to the party to exercise right to rescind the agreement. In other words, Respondent’s remedy lies in suing for specific performance only and not for rescission of the sale.
The Appellant, in arguing his issue 2, arising from grounds 3, 4, 5 and 6 of the grounds of appeal, submitted that the conclusion reached by the learned trial Judge, that there had been failure of consideration is erroneous and cannot be supported. Learned Counsel contended that, it is not the case of either party that there was a novation of the contract entered into in 1990 to warrant a fresh consideration that can be said to have failed. He further contended that, it is trite that the Court will neither make contract for the parties nor inquire into the adequacy of consideration and placed reliance upon the case Biyo v. Aku (1996) 1 NWLR (Pt. 422) 1,38 and African Petroleum Ltd. v. Owodunni (1991) 8 NWLR (pt.210) 391, 414.
Learned Counsel finally submitted that, the setting aside of the decision of the Waje Area Court had the effect as if the refund order had not been made and thereby restoring the parties to status quo ante the decision of the Waje Area Court which was subsequently quashed by the Upper Area Court, Kano.
There is no substance in the submission of the learned Counsel for Appellant. His last submission relating to refund of part payment of N14,000.00 purchase price is not only grotesque, preposterous but also not candid. I cannot appreciate learned Counsel’s contention that, the part-payment should be deemed extant even though his client collected the money barely two days after the Respondent placed it on deposit at the Area Court for collection by Appellant who is still keeping the money to date. In effect, the Appellant demanded the refund of the purchase price and, when it was refunded to him, he accepted it.
The issue of refund of the purchase price is neither here nor there. It has no bearing whatsoever with the determination of the issue raised in this appeal. The Appellant with his eyes wide open voluntarily contracted to purchase the property in dispute for a consideration of N16,000.00, made immediate part-payment of N14,000.00 thereof with a promise to pay the balance of N2,000.00 some ten days later. He is bound by his bond, notwithstanding that the transaction is not evidenced in writing. Generally, section 4 of the Statute of Frauds requires that a transaction dealing with interest in land should be by a note or memorandum in writing. On the application of the Statute of Frauds, the Full Court of Divisional Court of Nigeria refused to lay it down as a strict rule of law that land, the property of an illiterate native, cannot be disposed of by him without complying with statute. See Bintu Alake and Ashafa Lawal v. Awawu 11 NLR 39,40 and Ashabi Okoleji v. M.A. Okupe 15 NLR 28. The parties to the instant appeal, as can be garnered from the record of proceedings are illiterates and on those authorities, the fact that the transaction is not in writing is not prejudicial.
The rules of law governing sale of land under the customary law are clear, unambiguous and no longer require restatement. But for avoidance of doubt or convenience, they are reiterated herein. Before there can be a valid sale of land under native law and custom, the three elements or requirements are (a) payment of purchase price; (b) the purchaser is put in possession by the vendor (c) in the presence of witnesses: Cole v. Folami (1956) I FSC 66; (1956) SCNLR 180, Ogunbambi v. Abowab (1951) 13 WACA 222, 225 and Akingbade v. Elemosho (1964) 1 All NLR 154.
Where purchaser of land made part payment of the purchase price but defaulted in paying the balance there can be no valid sale even where the purchaser is in possession: Odufuye v. Fatoke (1977) 4 SC 11. Such possession is incapable of defeating the vendor’s title.
But where part payment of the purchase price of land is made and the purchaser paid up the balance within the prescribed or agreed time, or in the absence of stipulated time within a reasonable time, the vendor will not be entitled to resile from the contract of sale and if he does, he can be compelled by specific performance.
The Appellant herein made a part-payment of the purchase price of land but refused to tender the balance inspite of several demands or extension of the stipulated time within which to pay the outstanding balance. The Appellant’s refusal to pay up the remaining purchase price is fatal to his acquisition of the land because he is not entitled to title to the property until the purchase price is fully paid notwithstanding his possession.
There is no evidence that the Appellant paid the purchase price fully nor was there evidence led showing he was formally let into possession as the purchaser of the property in the presence of witnesses, apart from the possession into which he was put as a tenant. The possession Appellant acquired as a tenant in my respectful opinion, does not qualify him to the legal estate. It is clear that, he has not satisfied any of the three elements or ingredients of acquisition of valid legal title under native law and custom. The Appellant’s part payment of the purchase price to the Respondent, the vendor, without paying the remaining N2,000.00 is equally not sufficient to vest him with any interest in the land in dispute. The Appellant has by his conduct failed to acquire valid legal estate to the property. His interest or status in respect of the property was not higher or better than his tenancy which cannot defeat Respondent’s legal estate or title, especially so when he had accepted the refund of part-payment he made: Oloto v. Administrator-General (1946) 12 WACA 76 and Odufuye v. Fatoke (supra) and Odusoga v. Ricketts (1997) 7 NWLR (pt.511) 1 at 21 where Wali, J.S.C said:-
“The fact that the Respondent made part-payment to the vendor, for which he obtained a receipt Exhibit ‘A’ did not pass the legal estate of the land in dispute to him. Where a purchaser, as in this case, paid only part of the purchase price of a parcel of land which was demarcated into plots before the sale, went into possession, developed substantial part of the land while leaving the rest bushy and undeveloped, the legal estate of the undeveloped part still remained with the vendor, particularly when the purchaser had failed to pay the balance of the purchase price after several repeated demands”.
Onu, J.S.C at page 25 of the same report observed thus:
“In the instant case, no such customary sale did indeed take place, and the trial Court rightly so found. This is because, the Respondent did not pay the full price for the 4 plots of land he purported to purchase from the Appellants for 950 pounds with a balance of 250 pounds left unpaid. The attributes of a valid sale being therefore absent from the purported sale to the Respondent, title thereto not having passed, the Court below seriously erred, when it held that under customary law the legal representatives of Jemi-Alade, transferred the ownership of the land in dispute on the part payment of the purchase price thereof. A fortiori the court below also was in error when, it held that the execution in 1976 of Exhibit ‘B’ was a confirmation of the purported customary sale which took place in 1965…”
But the position under the native law and custom is not different from the rule of common law. At common law, payment of purchase price as well as possession vests the purchaser with equitable interest on the basis of which he can seek an order of specific performance. But where the purchaser fails to pay the purchase price fully, he will have no right to a decree for specific performance. There will then be a right in the vendor to rescind the contract of sale and resell the property. See Odusoga v. Ricketts (supra) at page 17:-
“In an attempt to distinguish Howe v. Smith from the case on hand, the Court below, per Ademola, J.C.A was of the opinion that payment made by plaintiff and receipted for in Exhibit ‘A’ was not a deposit but part-payment. I cannot see what difference this distinction makes in this case. The factual situation here is that, plaintiff did fully pay for the land he bought from the family of Jemi-Alade in 1965 and the family in 1972 resold the undeveloped part of it to the 1st Defendant, after repeated demands made to the plaintiff to pay had yielded no results. On the authorities, there was neither a valid sale in 1965 under customary law nor had the plaintiff in 1972 equitable title to the land under the common law such as would entitle him to a decree of specific performance. The question of whether what was paid was a deposit or part-payment only becomes relevant when determining the right of the purchaser to a refund of what he paid. That issue does not arise in this case. The adminstratrix of Jemi-Alade was entitled to sell and convey the land in dispute to the 1st Defendant/Appellant in 1972, following the failure of the plaintiff to pay the balance of the purchase price, despite repeated demands.”
The Respondent herein who was incidentally the plaintiff, in the present case, since there was no valid sale under the customary law and the Defendant has no equitable title to the property under common law the respondent should have exercised his lien over the property and resell and convey the property to any other person who might be desirous of buying the premises. He does not have to resort to the expensive and long process of litigation to recover the land in dispute or the balance of the purchase price.
Where two free and able parties entered into an agreement, the Court has a duty to hold them down and give effect to their contract no matter how inelegantly or ineptly couched. It will be demanding too much of any court to approve unjustified departure from or rewrite such contract except such a contract or part thereof had been properly abrogated: Misr (Nigeria) Ltd. v. Salah El-Assad (1971) 1 All NLR 172.
It is settled law that, if a party to a contract commits a breach or breaches and such breach or breaches are of fundamental terms, the innocent party has an option. He may accept the breach or breaches as a repudiation and treat the contract at an end and no longer binding on him and sue for damages in respect of the breach or elect, to affirm that the contract is still existing, continuing and enforceable by seeking for specific performance. See Suisse Atlantique Societe D’Armement Maritime S.A. v. Rotterdamche Kalen Centrale (1967) 1 AC 361, which was cited with approval in Niger Insurance Co. Ltd. v. Abed Brother Ltd. (1976) 7 SC 35 referred to in the Respondent’s brief; Maiden Electronics v. Attorney General of Federation (1974) 1 SC 53 and Odusoga v. Ricketts (supra) 16-17.
The Respondent, in the instant appeal, opted to treat the contract was at an end and no longer continuing and in existence. It follows from the foregoing that, the learned trial Judge found in favour of the Respondent’s entitlement to rescind the contract of sale and thereby, declared the sale invalid and formally set it aside. The answer to Appellant’s issue 2 is positive; grounds 3, 4, 5, and 6 of the grounds of appeal related thereto fail and are accordingly dismissed.
The remaining issue, in controversy between the parties to this appeal, is appellant’s issue 3 which was framed from grounds 1 and 7 of the grounds of appeal.
In this connection, it was submitted, on behalf of the Appellant, in his brief that he had been in occupation as bona fide purchaser for value while the trial of the dispute lasted and until the sale was rescinded he cannot be held a trespasser. It was further submitted that the trial Court wrongly exercised its discretion in awarding damages against the Appellant for trespass, when the appellant committed no trespassory acts with respect to his occupation of the subject matter, while the dispute as to the validity of the sale was being ventilated in the court.
The learned Counsel for Respondent, on the other hand contended that, the lower Court was right in declaring Appellant a trespasser on the ground that in contract cause of action accrues on breach of the agreement and not when damages is suffered and cited Lawal Sanda v. Kukawa Local Government & Another (1991) 12 NWLR (Pt.174) 379, (1991) 3 SCNJ 35 in support. Notwithstanding, Appellant acquiring possession lawfully, Counsel argued he was liable in trespass. See Mrs. R. Y Ajibade v. Madam Theodora I. Pedro (1992) 6 SCNJ (Pt.1) 44, (1992) 5 NWLR (Pt.241) 257.
There is no merit in the submission of the learned Counsel for Appellant that, Appellant was not a trespasser until the sale was declared invalid and rescinded. A court decision resolves an existing dispute and does not create one. In other words, in a breach of contract case, such as the present one, there is accrual of cause of action at the time of the breach of the contract and not until damage is suffered. See Lawal v. Kukawa Local Government & Another (supra) (1991) 2 NWLR (Pt. 174) 379. The Respondent’s cause of action, in the instant appeal, accrued at the expiration of the time or such extended time within which to pay up the remaining purchase price of N2,000.00 and he failed to do so. At that time, his occupation of the property ceased and his continued possession thereafter became unlawful. It is therefore preposterous to contend that, the Respondent’s right to sue for trespass did not arise until the Appellant’s possession was declared invalid by the Court below. He was a trespasser from the date of accrual of cause of action, which position the Court merely declared in its judgment.
It is trite that a trespasser’s possession is not a legitimate or legal possession: Da Costa v. Ikomi (1968) 1 All NLR 394, 398; Talabi v. Adeseye (1973) NMLR 8, 10; Badiru v.Ozoh (1986)4 NWLR(Pt. 38) 724 and Aromire v. Awoyemi (1972) 1 All NLR (Pt.1) 101, 103 where the Supreme Court held that “a trespasser cannot claim to be in possession by mere act of entry…”
As the Respondent originally got the Appellant to enter the property lawfully by a tenancy agreement, the Respondent’s claim of trespass against him, generally cannot succeed. There can only be a criminal action if the entry was forcible; Beddall v. Maitland (1881) 17 CH.D 174, Hemmings & Another v. Stoke Poges Golf Club (1920) 1 KB 720; Agbioby v. Cohen (1955) 1 QB 558; Adeleke v. Adewusi (1961) All NLR 37 and only the person in actual possession can sue: Ekwere v. Iyiegbu (1972) 6 SC 116.
The submission of the learned Counsel for Appellant concerning Appellant’s possession is not predicated upon the tenancy agreement whereby, the Appellant initially gained entry to the property. His act of possession as a tenant is seemingly abandoned according to learned Counsel’s submission, which is predicated upon the purchase of the property which purchase is found inchoate for failure of consideration: Okupe v. Laja (1961) All NLR 78. He has failed to show that he was in possession and cannot therefore successfully fend off accusation of trespass: Oyebanji v. Okunola (1968) NMLR 221.
A person who even, according to well established rule of law, enters on a property lawfully or consequent upon authority given by either the owner or a person in possession can subsequently be held guilty of trespass if he abuses his authority or occupation of the property. In the case of R. Y Ajibade v. Theodora I. Pedro (supra) (1992) 5 NWLR (Pt. 241) 257 Nnameka-Agu, at p. 272 of the report said:-
“It has been doubted whether a person who entered upon land lawfully or at the invitation of the owner or the person in possession can be adjudged a trespasser.
It is settled principle of law that where a person who initially entered upon land lawfully or pursuant to an authority given by the true owner or person in possession subsequently abuses his position or that authority, he becomes a trespasser ab initio, his misconduct relating back so as to make his initial entry trespass. Blackstone in his Commentaries put it this way:
‘Where a man misdemeans himself or makes an ill use with the authority with which the law entrusts him, he shall be accounted a trespasser ab initio’.
The rationale behind this is that, the law adjudges his initial intent on entry by his subsequent conduct. See Six Carpenter’s case 16108 Rep 146a, 146b; Oxile v. Watts (1785) 1 T.R.12. In the instant case, the moment the first Defendant refused to quit the premises which she had entered lawfully; she became a trespasser ab initio. The said defendant was also a trespasser by her conduct upon entering the premises”.
Since the Appellant defaulted in honouring his promise to pay his rent regularly or pay the balance of his purchase price fully, he abused the authority or position whereby his initial entry was lawful he became a trespasser ab initio. The lawful entrant becomes a trespasser and the act of trespass relate back to constitute the first entry to trespass.
The answer to the Appellant’s third issue is equally answered in the affirmative. The two grounds of appeal, grounds 1 and 7 fail and are dismissed. Having decided the two issues in favour of the Respondent the appeal also fails and it is dismissed with costs which is assessed at N3,000.00 in favour of the Respondent.
Other Citations: (2000)LCN/0722(CA)