Akunne Bosa Mbanefo Vs Mofunanya Agbu & Ors (2014)

LAWGLOBAL HUB Lead Judgment Report

CHRISTOPHER MITCHELL CHUKWUMA-ENEH, J.S.C

This appeal is against the decision of the Court of Appeal Enugu Judicial Division allowing the appeal against the judgment of the High Court sitting at Onitsha Anambra State for ordering in favour of the plaintiff the refund to him of the purchase price and the award of general damages for breach of contract of sale of a plot of land situate at Akwuefe Lavout Umutasia of Ogbeodogwu at “3-3” in Onitsha Urban of Anambra State with costs assessed and fixed at N3,000.00. The matter has now come to this court on appeal lodged by the plaintiff.

Evidently from the pleadings filed and exchanged by the parties as well as from their respective viva voce testimonies in the case at the trial court the facts of this case are not complicated. They run as follows: In this court the plaintiff is the appellant and the 1st defendant (a legal practitioner) and the 2nd defendant (at all material times the vendor in this matter) are the 1st and 2nd respondents respectively in this appeal. It is the appellant’s case that about March 1995 that the 1st respondent came to his place with the 2nd respondent and offered to sell to him the aforesaid plot of land at the agreed sum of N180,000.00 (One Hundred and Eighty Thousand Naira only) and he paid the same. From the receipt issued to him for the said sum he noticed that the 1st respondent acted in the transaction for the 2nd respondent as his solicitor which state of affairs were unknown to him from the start of their negotiation.

In addition to paying the premium the appellant claimed to have paid N10,000.00 for the survey plan of the said plot of land and a further sum of N17,000.00 for the preparation of a memorandum of customary grant of the land to him and for the Governor’s consent as required under section 22 of the Land use Act. The appellant complained that the respondents failed to obtain the Governor’s consent to the transaction as agreed. About 1997 the appellant noticed the presence of trespassers on the land and confronted the 1st respondent on the said question to no avail as they resold the land to the trespasser. The respondents in their defence filed at the trial court denied ever reselling the land to another person. It is to be noted that the appellant’s case rested on the fact that the respondents fraudulently resold the land to someone else. In the circumstances the appellant prayed as per his claim. It is the respondents’ case that they sold the plot of land to the appellant and put him in possession thereof in accordance with the custom. For two years he failed to develop the land and no wonder trespassers entered the land and took over the land. The appellant stood by and did nothing.

The trial court at the conclusion of the case before it gave judgment for the appellant against the 2nd respondent as the owner of the land in question; it however, dismissed the claim against the 1st respondent who as found by the trial court acted solely as solicitor for the 2nd respondent in the transaction and therefore not liable.

The 2nd respondent has appealed the trial court’s decision while the appellant has also cross-appealed to the court below. The court below in its judgment has allowed the appeal of the 2nd respondent and has dismissed the plaintiff’s claim in its entirety and it has also dismissed the cross-appeal. Hence the appellant has filed a notice of appeal on 24/5/2007 containing four grounds. In the appellant’s brief of argument filed on 23/7/2007 in this appeal three issues for determination have been distilled and they are:

“1. Were the learned Justices of the Court of Appeal not grossly in error when they held that in the circumstances of this case it was the duty of the purchaser of land to obtain the consent of the Governor.

2. Were the learned Justices of the Court of Appeal not grossly in error when they held that the appellant was put in possession of the land and therefore had taken title to the land.
3. Were the learned Justices of the Court of Appeal not grossly in error when they held that the 1st respondent only acted as a legal practitioner in the sale of land transaction in this case.”

The respondents have also filed their respondents’ Brief of Argument on 13/9/2007 and they have raised three issues and they are:

“Were the learned Justices of the Court of Appeal not correct, when they held that, by the nature of the transaction in this suit and based on the pleadings, that what the 2nd respondent held was an equitable title, based on customary law, which he transferred to the appellant and which transfer was complete upon payment of the purchase price and being put into possession in 1995 and therefore it was the duty of the appellant to apply for the consent of the Governor to convert such a title to a certificate of occupancy and to chase away trespassers to the land and not the duty of the 2nd respondent to do so

Were the learned Justices of the Court of Appeal not correct, when they held that the learned trial Judge was wrong in law, when he awarded to the plaintiff his claims, after having found that the respondents did not resell the land to anybody, which was the basis of the claims before the court

Were the learned Justices of the Court of Appeal not correct, when they held that the 1st respondent, from the records before the court, only acted as a legal practitioner to the 2nd respondent, and that it was therefore wrong and condemnable to have joined him in this suit”

On the First issue, the central theme in the appellant’s contention is that all State land is vested in the State Governor by section 1 of the Land Use Act 1990, and that the 2nd respondent as the vendor in the instant matter is by Section 22 of the Land Use Act required to obtain Governor’s consent to alienate his interest in the aforesaid plot of land to him and that by virtue of section 26 of the said Act any transaction affecting land or instrument pertaining thereof as in this matter not in compliance with the said section 22 is null and void. He opines that the 2nd respondent has been allotted the instant plot of land by the family thus constituting him an absolute owner of the said plot of land and that as the land is situate in the Designated Urban Area of Onitsha, it is subject to the written consent of the Governor for any transfer whatever affecting the said plot of land. The appellant has thus submitted that the 2nd respondent’s purported transfer of his interest in the said plot to him is to no avail and ineffective indeed void without the Governor’s consent and so that unless and until the deal has complied with section 22 of the Land use Act no interest whatsoever in the land has been transferred to him. See: International ile Industries (Nig) Ltd. v. Dr. Ademola Oyekanmi Aderemi & ors. (1999) 8 NWLR (Pt.614) 268 and Awojugbagbe Light Industries Ltd. v. Chinukwe (1995) 4 SCNJ 162 at 216-2D. He maintains that both he and the vendor (2nd respondent) have entered into Exhibit A albeit an inchoate agreement of the transaction that the 2nd respondent bears the duty to pass a proper title to the land to him by seeking and obtaining the written consent of the Governor. He has rested on the following authorities like savannah Bank Ltd. v. Ajilo (1989) 1 NWLR (Pt 97) 305, Solanke v. Abed (1962) NMLR 92 and Owoni-boys Tech-services Ltd. v. Union Bank of Nigeria (2003) 15 NWLR (Pt.844) 545 at 583 to contend that it is an owner of a statutory right of occupancy of land as the 2nd respondent and not the purchaser as himself that is obliged under the Land use Act to seek and obtain the consent of the Governor for the instant transaction in the land particularly so as it is situate in an urban area of Onitsha and that the lower court has misconceived the said provision in rejecting his case on the point.

On issue Two:

The appellant has contended that the ownership of the instant land has not by Exhibit A passed to him as it cannot be so without the consent of the Governor under section 22 of the Land Use Act. And that under the instant sale transaction that the title to the land is still with the 2nd respondent. He has castigated the lower court’s view that the 2nd respondent having only a customary title to the land and which interest he has transferred to the appellant by Exhibit A that it is for the appellant to convert it to right of occupancy as the transaction is a Customary sale of land. He has further challenged the transaction for not having been predicated on any customary law nor has the allegation of having put the appellant in possession of the land been done in the presence of witness as required under customary Law and he relies on the decisions in Aboyade Cole v. S.R. Folami (1956) 5 CNLR 180 at 183; Lydia Irinosho v. Tunji Owokoniran & Anor. (1965) NMLR 479 and Murana Ajada v. Madam Dorcas Olakewaju (1969) ANLR 374 per Fatai Williams JSC (as he then was) for so submitting. Finally, he submits that as title has not passed added to the fact of not having been put in possession of the land that it is for the 2nd respondent to ward off any trespassers.