Alhaja Silifatu Kikelomo Omotayo V. Christopher Ajibola Ogundipe (1994)

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UWAIFO, J.C.A. 

When may a conditional leave to defend be given? This appeal raises that main issue. It decides when a trial Judge may, in the exercise of his discretion under Order 11 rule 4 of the High Court of Lagos State (Civil Procedure) Rules 1972, give as a condition for defending an action that the defendant do pay into court the whole (or part) of the amount claimed by the plaintiff. I will here set out the provisions of the said rule as follows:

“Leave to defend may be given unconditionally or subject to such terms as to giving security or time or otherwise as the Judge may think fit.”

This rule is similar to the former R.S.C. 1883 Order 14 rule 6, R.S.C. (Rev.) 1962, Order 14 rule 3 and the present R.S.C. 1965 Order 14 rule 4(3) of England. There are English decided cases in which the provisions in question have been interpreted. I have searched in vain for any Nigerian authority in which the rule has been considered. I rather think there is none. I shall have to seek guidance from the English authorities.

In the present case, the plaintiff sued for specific performance of (land) sale agreement or in the alternative (a) an order for a refund of the sum of N150,000.00 paid as deposit for a consideration that has totally failed; (b) N50,000 damages for breach of contract of sale; and (c) interest at the rate of 15% per annum from 17 March, 1984 till judgment is delivered and thereafter interest at the rate of 10%.

The property which is the subject of the sale agreement is 12 Adekitan Street, Mushin, Lagos. The N150,000.00 was paid in three lots of N50, 000.00 each. As the agreement indicates, this probably enabled the defendant to pay the sum of N70, 000.00 to one Elijah Alao so as for him to forego his interest in the said property which the judgment in suit No. ID/123/77 had given him. That done, the title in the property became solely in the 1st defendant.

The sale was agreed at N550, 000.00. There was thus a balance of N400,000.00. Clause 2(d) of the agreement provides:

“(d) The balance of N400, 000.00 (Four Hundred Thousand Naira) will be paid to the Vendor through her solicitors immediately

(i) Upon execution of a Deed of Assignment in favour of the Purchaser, Mr. C.A. Ogundipe and

(ii) Upon obtaining the necessary Governor’s consent to the Deed of Assignment between Elijah Alao and the Vendor, Alhaja S.K. Omotayo and registration of the said document at the Lands Registry, Lagos.”?

As will be shown later, it is this clause which the learned trial Judge identified as posing a dispute as to who was in breach.

The facts relied on by the plaintiff seem to be founded on an alleged breach by the 1st defendant of the condition of sale as stated in clause 2(d). It is sufficient to refer to paragraphs 12, 13, 14 and 15 of the statement of claim which read:

“12. The plaintiff shall contend at the hearing of this case that he paid the said sum of N150,000 as part of the purchase price of the said property at 12 Adekitan Street, Mushin, Lagos State with an understanding that the balance of N400,000 (Four hundred thousand Naira) is to be paid as per the conditions on the Sale Agreement dated 17th March 1984 ..

13. The plaintiff avers that since 17th of March 1984 when the Agreement was executed he has visited the 2nd defendant several times to get the Deed of Assignment in respect of the said property at 12 Adekitan Street, Mushin, Lagos prepared in his favour but he had always given the plaintiff one excuse or the other and has since failed to perfect the conditions on the Sale Agreement.

14.. The plaintiff states that he thereafter went to see the 1st defendant and asked her to perfect the conditions on the sale Agreement between the plaintiff and the 1st defendant or to give the plaintiff the sum of N150,000 already paid for the said house and property at 12 Adekitan Street, Mushin, Lagos.