Alhaji Fatai Kunle Onayemi V. Mr. Gbadeso Idowu & Ors. (2008)

LawGlobal-Hub Lead Judgment Report

KUMAI BAYANG AKAAHS J.C.A,

The issue in tile preliminary objection or 5th respondent to this appeal is whether a plaintiff who was granted the alternative claim and awarded damages has a right to appeal against the main claim.

On the other hand the complaint of the appellant is that an order of specific performance should have been ordered once the learned trial Judge round that the sale of the disputed house to him was valid and that the 1st defendant acted as agent of the 2nd defendant.

The plaintiff took out a Writ of Summons and claimed in paragraphs 24, 25, 26 and 27 of the Further Amended Statement of Claim the following reliefs:-

“24 Specific performance against the 2nd defendant of the contract made the 10th day of July 1995 between the 1st defendant as agent of the 2nd defendant and his other three sisters and the plaintiff for the assignment of a landed property at SW7/43 Oke-Bola, Ibadan measuring 814.16 Square yards and as delineated in Plan No. SAP/122/60 dated 20tb September, 1960 drawn by the late Mr. S.A Sogunro-Pitan licensed Surveyor and attached to the deed of conveyance dated 20th October, 1961 and registered as instrument no. 46 at page 46 in 493 of the Land Registry Ibadan.

ALTERNATIVELY

NI.5 Million (one and a half million Naira) damages jointly and severally made against the defendants for breach of contract of an Assignment of a parcel of landed property at OkeBola, Ibadan Oyo State entered into by the first defendant as agent of the second defendant with the plaintiff at Ibadan on the 10th day of July, 1995.

Annual rental value N2,000.00.

25. A declaration against the 2nd defendant that the deed of assignment dated 12th day of August, 1997 and registered as instrument No. 40 at page 40 in volume 3247 executed by him in favour of the 6th defendant during the pendency of this suit is null, void and of no effect whatsoever and ought to be vacated in the register of deeds of the department of Lands and Physical Planning of the Ministry of Lands, Housing and Physical Planning Oyo State, Ibadan.

26, A declaration against the 5th defendant that the deed of Assignment dated 12th August, 1997 registered as instrument No. 40 at page 40 in volume 3247 of the register of deeds by the Department of Lands and Physical Planning Ibadan in favour of the 6th defendant is irregular, null, void and of no effect same having been registered carelessly and Negligently and ought to be vacated in the register of deeds of the said Ministry of Lands, Housing and Physical Planning at Ibadan. 27. A declaration that the assignment of the property in dispute in this case by the 2nd defendant to the 6th defendant by virtue of the deed of assignment dated 12th August, 1997 and registered as instrument No. 40 at page 40 in volume 3247 of the register of deeds at Ihadan during the pendency of this suit constitute an act of disrespect to this Honourable Court and ought not be relied upon by the 2nd and/or the 6th defendant for any purpose at all at the trial of this suit in this Honourable Court.

28. The 1st defendant, an estate agent and the Director of Debo Stephensons and Company stated in evidence that he was given a letter of authority by the 2nd defendant to sell the property in dispute and when the plaintiff showed interest in buying the house, the two of them namely the plaintiff and I” defendant went and inspected the house. After inspecting the house, a meeting was arranged in his (1″ defendant’s) office where the plaintiff met with the 2nd, 3rd and 4th defendants and negotiations took place and an agreement was reached on the value of the house put at N750,000.00 and the plaintiff was to pay in two instalments. The first instalment of N500,000.00 was paid through a Union Bank Cheque on 10/2/95 while the balance of N250,000.00 was also paid through a Bank of the North cheque on 29/9/95. When the first cheque was encashed, the money was shared out and the 3rd and 4th defendants collected their shares but the 2nd defendant did not collect his portion but asked the Ist defendant to keep it. He later wrote the 2nd defendant when he received the cheque for the balance of N250,000.00. It was at that instance that the 2nd defendant told him he was no longer interested in the transaction and asked him to return the money to the plaintiff as he had found a better offer and showed him (1st defendant) a cheque for N800,000.00. He then briefed his (1st defendant’s) solicitors to write to the 2nd plaintiff but the letter was returned unclaimed. The 2nd defendant however claimed that he withdrew the mandate he gave to the 1st defendant when the latter could not sell the house within a reasonable time before selling same to the 6th defendant for N800,000.00 in October 1995.

The learned trial Judge reviewed the evidence (documentary and oral) which was adduced by the parties and found that the plaintiff paid the purchase price which was acknowledged by the 1st, 3rd and 4th defendants and consequently performed his part of the contract but the properly is yet to he released to him by the 2nd defendant and so section 67(2) of the Property and Conveyancing Law Cap 130 Laws of Oyo State 1978 is applicable to the case. He also found that the 1st defendant is the agent of the 2nd defendant in respect of the sale of the property in dispute to the plaintiff and that he obtained the consent of the 2nd defendant before he effected the sale which created a contract between the plaintiff and the 2nd defendant a breach of which is capable of enforcement by the court. Despite these findings the learned trial Judge did not make an order of specific performance to compel the 2nd defendant to execute a formal conveyance transferring the property to the plaintiff because the 2nd defendant had assigned the property to the 6th defendant. He reasoned that since the 2nd defendant is vested with the property as sole administrator and proceeded to transfer to a 3rd party i.e. 6th defendant, the relief being sought for specific performance cannot be granted and proceeded to award N1 million (being the alternative claim) as damages for breach of contract. The plaintiff felt aggrieved and in an undated Notice containing four grounds appealed against the said judgment (see pages 165 – 190 of the Records) from which the following three issues were formulated for determination:

I. Whether the learned trial Judge was right when he said that the 2nd respondent has assigned the property in dispute to a third party that is the 6th respondent when the court had earlier held that the 2nd, 3rd and 4th respondents had already sold the same property to the appellant through tile Agency of the 1st respondent by virtue of the legal principle of NEMO DAT QUOD NON HABET..

2. Whether the learned trial Judge was right not to consider the legal implication of the principle of “Lis Pendens” as a basis to VOID the purported assignment of the property in dispute by the 2nd respondent to the 6th respondent on 12th August, 1997 during the pendency of the suit which commenced on 4th December, 1995 and to which the 2nd respondent filed a Memorandum of Appearance on 8th December, 1995.
3. Whether the refusal of the learned trial Judge in making an order of specific performance for the assignment of the property in dispute by the 2nd, 3rd and 4th respondents in favour of the appellant can be allowed to stand in view of the clear provisions of section 67(1) & (2) Properly and Conveyancing Law Cap. 99 Volume V. Laws of Oyo State 1978 which the Honourable trial court itself had held to be applicable to the suit.

The 1st, 3rd and 4th defendants did not contest the appeal consequently they did not file any briefs of argument. But the 2nd, 5th and 6th respondents responded to the appeal with the 6th respondent amending his brief which was filed on 28/9/2007 pursuant to order of court made on 24/9/2007. The 2nd respondent formulated two issues as follows:

1. Whether in law there was a valid sale of any house by the 1st defendant the supposed agent of the 2nd defendant/respondent in the first place.
2. Whether the court can order for specific performance of a non-existing and out rightly INEFFECTIVE ILLEGAL and INEFFECTUAL contact (sic) entered into by a party lacking requisite legal capacity to so act.

Apart from the preliminary objection the issues raised by the 5th respondent are:

1. Whether the learned trial Judge was right when she held that the 2nd respondent has assigned the property in dispute to a third party the 6th respondent.
2. Whatever (sic) the principle of Lis Pendells is applicable to this suit when in fact the property had been sold to the 6th respondent before the suit was instituted.
3. Whether the appellant can he heard in Law for an order of specific performance having been awarded damages claimed as alternative relief in his statement of claim. This issue is a repetition of the preliminary objection,

The 6th respondent formulated three issues for determination but they are a repetition of issues 1 in the 2nd respondent’s brief and issues 2 and 3 in the 5th respondent’s brief respectively.