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.

On Issue Three:

The appellant has contended that throughout the transaction the 1st respondent has not disclosed the identity of the 2nd respondent as the vendor and the owner of the land until after he has sighted the receipt for the premium paid to the 2nd respondent and that he has dealt solely with the 1st respondent all along, and who has assured him of the genuineness of the transaction. He contends therefore that the 1st respondent never acted as a solicitor to the 2nd respondent who he has also claimed as an undisclosed principal in the transaction. He refers to the cases of O’Herithy v. Hedges (1803) 2 Sch & Lef.123 and Mountgomerie v. U. K. Mutual SS Assan (1891) 1 QB 370 at 372 and that he has sued the 1st and 2nd respondents i.e. as agent and principal as both are liable in this matter. See: Ogida v. Oliha (1986) 2 SC.406 and NSP Ltd. v. Ogun & ors. (1980) NCLR 233. Finally, the court is urged to allow the appeal set aside the judgment of the lower court and restore the decision of the trial court.

The respondents have responded fully to the appellant’s case as amply covered by the three issues raised by them.

Issue No. 1: They have submitted under it on the pleadings and evidence that the land has been sold to the appellant as per Exhibit A i.e. the Deed, as per the Customary Grant which contains all the incidents of customary sale of the said land as performed by the plaintiff (i.e. appellant) who also has admitted of having been put in possession of the land. They make the point that the payment of the premium in the deal coupled with having been put him in possession of the land confers on the appellant an equitable interest. See: Ogunbambi v. Abowab 13 WACA 222: The Registered Trustees of Apostolic Faith Mission v. James (1987) 3 NWLR (pt.61) 556; Obijuru v. Ozims (1989) 2 NWLR (pt.6) 167 and Adeniji v. Onagoruwa (2000) 1 NWLR (Pt.639) 1 at 32.

And that having been put in possession the appellant is to secure his possession by warding off trespassers trespassing on the land. However, it is contended that there is no evidence of his having been confronted by any trespassers with a better title to his own. They submit that against this misconception by the appellant that he is armed with Exhibit A and that he has to convert his interest thereof into a statutory right of occupancy by complying with sections 5(1) and 9(1) of the Land use Act 1990 so as to have a certificate of occupancy granted to him. And that the instant transaction is not covered by section 22 as Exhibit A not being any instrument as an assignment, mortgage, transfer, lessor, sub-lease etc of land and subject to requiring Governor’s consent and that the authorities cited in this appeal by him are inapplicable to the issue.

On issue two, they submit that the main plank of the appellant’s allegation is of their having resold the land to another person to whom they have also secured the necessary consent of the Governor. On that premise he has asked that the respondents be made to refund the premium and pay general damages. They observe that the loss of possession has been through the appellant’s fault as they the respondents have not resold the land to anyone as found by the court nor is it for want of the Governor’s consent to the deal and that it lies on the appellant to ward off trespassers from his land as he has been put in possession as evidenced in Exhibit A. see: WAEC v. Akinkunmi (2002) 7 NWLR (Pt.766) 327 at 345-344 and that on these facts the appellant is not entitled to his claim.

On issue three the respondents have submitted that the finding of the trial court and the lower court that the 1st respondent has acted as a solicitor as the 2nd respondent has not been faulted. They also have debunked the appellant’s submission that the 1st respondent is the agent of the 2nd respondent which is not borne out by evidence. It is maintained that the 1st respondent has acted as solicitor to the 2nd respondent.

They urge the court to dismiss the appeal and affirm the judgment of the lower court.

I have more or less traversed the length and breath of the relative cases of both parties in the appeal as set out above before this court. As I understand this case the gravamen of the appellant’s claim as plaintiff at the trial court is founded on the allegation that the respondents have after having sold the land to the appellant have resold the same to another person and have accessed for that other person the requisite statutory Governor’s consent under section 22 of the Land Use Act and that the respondents have admitted the allegations when confronted by the appellant; vide paragraphs 13 and 14 of the appellant’s statement of claim. Also the appellant has testified unequivocally to the effect that upon noticing the trespass on the said land he has rushed to the 1st respondent to enquire about the governors consent to effectuate a complete transfer of ownership of the land to him, being as it were, a sine qua non required to perfect his title to the land. It is therefore his case to show how not having obtained the Governors consent is instrumental to his losing possession of his land. It is on the backdrop of these premises that the appellant has therefore asked the court for the refund of the premium he paid to the respondents and general damages, again in legal parlance for the failure of consideration as regards the whole transaction as it is clear, he has opined, that the 2nd respondent cannot transfer what he does not possess.

The critical question that arises from the foregoing surmises is whether the appellant has discharged the evidentiary burden of establishing the above facts situation as per the said paragraphs 13 and 14 of his statement of claim to entitle him to the various reliefs sought in the claim. It is my view that the lower court rightly has found no basis for the plaintiff’s averment as per the aforesaid paragraphs 13 and 14 of his statement of claim and so has spared no time in holding the trial court’s findings and the award of the judgment in the matter to the plaintiff as groundless and perverse. Indeed, there is no Justification on the findings of the trial court for the judgment wrongly given in the plaintiff’s favour by the trial court.

The lower court per Ogebe JCA (as he then was) having appreciated the case of the appellant vis-‘E0-vis the case of the respondents has rightly held as follows:

“I have carefully considered the arguments of both counsel with regard to the main appeal and it is my view that the crux of the appeal is a determination of whether or not the trial court was right in awarding damages to the plaintiff/respondents for the failure of consideration in respect of purchase of the disputed land.

It is trite law that for the sale of customary land as in this case it is the payment of the purchase price together with being put in possession of the land that confers a purchaser with an equitable title to that land. See the case of Adeniji v. Onagoruwa (2000) 1 NWLR (part 639) page 1.There was clear evidence before the trial court that by virtue of “Exhibit A” that is the Deed of the Customary Grant together with the evidence of the plaintiff/respondent that he was taken to the land and even paid a surveyor to survey the land as far back as 1995 that the transaction was complete.

It was two years later that the plaintiff/respondent noticed trespassers on the land. At that point the land had already passed to him and it was his duty to pursue and chase away the trespassers.

I do not agree with the view of the trial court that it was the responsibility of the seller of the land to obtain the consent of the Governor under the Land use Act. If the seller of the land had a certificate of occupancy in respect of the land and he wanted to dispose of it, it was his duty to obtain the consent of the Governor in order for the transfer of the land to be properly made to the purchaser. In this case what the appellant held was a customary Title and it was the duty of the buyer if he wanted the customary title to be converted to the Right of occupancy and subsequently to be issued with certificate of occupancy to apply to the Governor for such exercise.

The trial judge found at page 49 of the Record in his Judgment as follows:

‘There is no proof that the 1st or 2nd Defendant subsequently re-sold the land in question to another person. What is proved is that the plaintiff did not get the land which he paid for.

There is no proof that the 1st Defendant is duty bound to obtain the Governor’s consent in the matter or that he Promised to do so.’

With this finding of the trial judge based upon the evidence, the entire claim of the plaintiff/respondent collapsed since his claim was based on the averment that the defendant resold the land to another person and also failed to obtain the Governor’s consent for the transfer of the land. There was therefore no Justification for giving judgment to the plaintiff/respondent at all as his claim was not proved.

As I said earlier in this Judgment the plaintiff/respondent was put in possession of the land and the transaction between him and the defendants was complete. His inability to take firm control of the land was entirely his own doing for which the seller should not be held responsible.”

The above excerpt of the judgment of the lower court is thorough and cannot be faulted. What is deducible from the above excerpt is that the appellant having bought the land in 1995 has been put in possession as per Exhibit A by the 2nd respondent and that he thereafter has abandoned the land until 1997 when the evidence of trespass has manifested and that he has never bothered even then to find out who has so trespassed on his land but has now instituted the instant action for failure of consideration.

It seems to me that the appellant has misconceived the import of Exhibit A tendered by him as a document evidencing the sale of the land to him by the 2nd respondent. It is clearly a memorandum of customary sale of land. Exhibit A has transferred to the appellant all the 2nd respondent’s customary interests be it equitable in the land and in my view capable of defeating any subsequent purchaser and even then any adverse dealing by the 2nd respondent’s family. I agree with the respondents that the instant sale has been done under the custom; the wordings of Exhibit A makes this point self evident particularly as regard its habendum which reads thus:

“NOW THIS MEMORANDUM WITNESSETH that in pursuance of the said agreement and in consideration of the sum of one Hundred and Eighty Thousand Naira (N180, 000.00) paid by the Grantee to the Grantor the receipt whereof the Grantor hereby acknowledges and the performance by the Grantee of the customary rites consisting of the presentation of one hot drink and one goat slaughtered on the said land the Grantor as the beneficial owner of the land hereby grants, sells and transfers to the Grantee ALL that land at Akwuefe Land of Umu Tasia family of Ogbeodogwu Village, Onitsha at mile ‘3’3, Onitsha which said land is more particularly sown in plan No.MEC/69/95 and therein verged in red to hold the same unto the Grantee subject only to the Land Use Decree.”

The allegation by the appellant of the absence of witnesses to the act of putting him in actual possession of the land thus removing the transaction from a customary sale lacks merit. I agree with respondents that being a fresh issue and not having been raised as an issue at the two lower courts as well as not having sought and obtained leave of court to raise the issue here that it is too late in the day to take the point and so also the situation of the land whether in the urban or non-urban area of Onitsha. The parties’ cases here on the facts show that both parties have fought this case in the two lower courts as founded under custom and so cannot now resile from their relative positions in this court. See Okenwa v. Military Governor Imo State (1996) 6 NWLR (pt.455) 394 at 407 E-G – On the other aspect of the appellant’s case of not having been put possession; in that regard it is submitted he cannot be heard to challenge the fact of having been put in possession of the land by the 2nd respondent as this is evident by the slaughtering of a goat on the land as borne out by Exhibit A and I agree. The act is very symbolic of changing of possession under customary law. I have read the cases Aboyade Cole (supra), Lydia Erinosho (supra) and Murana Ajada (supra) stipulating the necessity of sales of land as in this instance being concluded in the presence of witnesses.

It is beyond argument that the instant transaction is one performed under customary law. Exhibit A is a classic evidence of handing over possession of land as here to the appellant in this case upon slaughtering of a goat on the instant land as it is an incidence of customary transfer of absolute interest in land matters. In the circumstances of this case Exhibit A as documentary evidence is the best evidence of its contents and also provides the criterion by which any oral evidence if at all given by any witnesses with regard to the evidence of having put the appellant in possession of the said land has to be received and assessed, and in this vein any evidence falling out of line with it has to be rejected although this issue on the face of Exhibit A is rebuttable, the appellant has not so rebutted it here and so it does not behove him to challenge the consideration and evaluation of Exhibit A by the court – a document duly tendered by him.

In my view Exhibit A has clearly evidenced the transaction, it has thereby established the customary sale to the appellant beyond any reproach and the lower court rightly has relied on it as having established the transfer of the land under the customary Law to the appellant.

Having come this far, I agree with the respondent that the 2nd respondent’s customary interest in the land is not at conflict with the provisions of section 22 (supra) as is being urged by the appellant. I shall expatiate anon on this question and even then the instant sale of the land to the appellant as per Exhibit A has been made subject to the Land use Act. And so a holder of customary title to land situate in urban area as the appellant in this matter has to apply to the Governor under sections 5(1) and 9(1) of the Land Use Act to have issued to him a Certificate of Occupancy of the land. It is the only way to obtain a certificate of occupancy.

Sequel to the above reasoning it is apparent that the appellant has misconceived the import of the provisions of Section 22 (supra) and so in an obvious attempt to jump the gun has opined that it is for the 2nd respondent to seek and obtain the Governor’s consent for transferring his customary interests in the land as per Exhibit A to him. This cannot be so on the facts and the law on this matter. It is clear that the appellant has floundered in his case and it must therefore fail.

In the light of the confusion that has pervaded the appellant’s case here I think it proper to scrutinize Section 22 which provides:

Section 22(1): “It shall not be lawful for the holder of a statutory right of occupancy granted by the Governor to alienate his right of occupancy or any part thereof by assignment, mortgage, transfer of possession, sublease, or other wise howsoever, without the consent of the Governor first had and obtained.

(2) The Governor when giving his consent to an assignment, mortgage or sublease may require the holder of a statutory right of occupancy to submit an instrument executed in evidence of the assignment, mortgage or sublease and the holder shall when so required deliver the said instrument to the Governor in order that the consent given by the Governor under subsection (1) of this section may be signified by the endorsement therein.”

The above provision has come up for construction on numerous occasions before this court and it is in the case of Awojugbagbe Light Industries Ltd. v. P. N. Chinukwe & Anor. (supra) that this court has scrutinised the provision exhaustively. The issue posed in the case is whether a mortgage deed – Exhibit E in the proceeding is valid and lawful as it has been executed prior to seeking and obtaining the Governor’s consent for the transaction. This court in construing Section 22(1) applicable to the cited case has held that a holder of statutory right of occupancy can enter into negotiations, in the cited case for a mortgage transaction, and the subsequent evidence of the same by a written agreement as Exhibit E which at that stage being an inchoate agreement does not require the consent of the Governor and is within the intendment of the section and so is not contrary to the law as it is to be eventually submitted to the Governor for his consent. This is followed by the second stage in the transaction i.e. of forwarding it to the Governor to append on the agreement his consent. The distinction between an agreement as contemplated under sections 22 and 26 of the Land use Act and the instant customary sale agreement as per Exhibit A in the instant case (i.e. the crux of this appeal) is very clear. No doubt the two situations are miles apart. As a security for the loan in the cited case the plaintiff/appellant in that case has mortgaged his property situate in the urban area of Ibadan to the mortgagor as evidenced as per Exhibit E without the Governor’s consent first obtained before its execution that is to say, as the land is within the urban area of Ibadan and so requires the Governor’s consent for any dealing with it. The basis of the decision in the cited case turns on whether Exhibit E is valid and lawful in that it has been executed prior to the Governor giving his consent. This court in that case has been called to construe section 22(1) (supra) and the court found it not applicable to Exhibit E in the cited case. In the instant case, on the other hand, the parties have simply executed Exhibit A as a customary sale agreement thus transferring the aforesaid land to the appellant here. In contrast to the cited case there is no evidence in the instant case where the said plot of land sold to the appellant is situate, whether in the urban or non-urban area of Onitsha as to require or not require the Governor’s consent. This is the gaping lacuna very damaging to the appellant’s case in this matter. The two situations not being the same the decision in the cited case cannot decide the instant case.

Without going further into the dialectics of the construction of the foregoing provision let me come down to how its application i.e. of Section 22 (supra) is relevant to the instant case if at all. Flowing from reading the provision it is clear that it is only whenever Certificate of Occupancy has been granted or is deemed granted and a holder of such certificate is desirous to transfer, assign, mortgage, lease and sublease of the land that is subject of such certificate that the Governor’s consent is required under the said section. Meaning that Exhibit A is not a document to which the Governor has to give his consent under the section as it is neither a granted certificate of occupancy nor a deemed one. It follows also that the appellant has gotten his case all wrong as it concerns this question by suggesting that the 2nd respondent has firstly to seek and obtain the Governor’s consent for the transaction, so as to perfect the appellant’s title to the land. I hold that the execution of Exhibit A as encompassing the transaction between the appellant and the 2nd respondent vis-a-vis the 2nd respondent’s customary interests in the said land, does not therefore require any Governor’s consent and being otherwise valid and subsisting as between the appellant and the 2nd respondent it has transferred to the appellant all the 2nd respondent’s interests thereof and so the appellant can exercise his rights of ownership under Exhibit A and besides he is also lawfully in exclusive possession of the land; these rights extend to protecting his land from trespassers.

It is settled law that trespass is an infraction of the right of exclusive possession to land and as the appellant here has been put in exclusive possession of the aforesaid land, an action in trespass is certainly maintainable by him by virtue of his rights against any trespasser who in law cannot claim to be in possession by mere entry which is complained of by the appellant. See: Browne v. Dawson (1840) 113 ER.95 and Philips v. Ogundipe (1967) 1 ANLR 258. It is therefore deprecated that the appellant instead of initiating an action to eject the trespasser(s) from his land has rather resorted to an action to rescind the contract of sale without any justification. And he must fail.

On issue 3: on this issue the appellant has failed to discharge the onus of showing that the 1st respondent has not otherwise acted as solicitor for the 2nd respondent in this land deal. His attitude on this issue has attracted severe condemnation from the lower court and I am at one with that court. I reject the appellant’s case insinuating that the 1st respondent never acted as solicitor to the 2nd respondent. I find his case in this regard most distasteful and baseless.

On the whole I find no merit whatsoever in this appeal, it lacks any substance and I have no hesitation in dismissing it. Appeal dismissed with N100,000 costs against the appellant.

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SC.179/2007