Alhaji Ibrahim Mohammed V. Klargester Nigeria Limited (2002)

LAWGLOBAL HUB Lead Judgment Report

O. OGWUEGBU, J.S.C. 

On 30th June, 1987, the plaintiff company instituted an action leading to this appeal in the High Court of Kaduna State, Kaduna Judicial Division claiming the following reliefs from the defendant:

(a) Specific performance of the said agreement;

(b) Possession;

(c) A declaration that the certificate of occupancy No. KDA/A/002763 affecting and concerning the piece of land at K.20, Chawai Road, Tudun Wada, Kaduna, vests valid title to the land on the plaintiff;

(d) A perpetual injunction restraining the defendant, his agents, heirs and servants from interfering on the property; and

(e) The sum of N50,000.00 (Fifty thousand naira) only as damages for the trespass committed on the said property.”

Pleadings were ordered, filed and exchanged and at the close of trial, the learned trial Chief Judge, (as he then was) entered judgment for the plaintiff as follows:

“1. Immediate possession of the house No. K.20 Chawai Road, Tudun Wada, Kaduna.

2. Specific performance of the contract of sale of the said house and
3. Injunction restraining the defendant, his agents, heirs or servants from in any way interfering with the said house.”

On appeal to the Court of Appeal by the defendant who was dissatisfied with the judgment of the learned trial Chief Judge, the court below affirmed the decision of the learned Chief Judge and dismissed the defendant’s appeal. He has further appealed to this court.The facts of the case are not complicated and can be gathered from the pleadings which are brief. The relevant paragraphs are as follows:

Amended Statement of Claim:

“3. On the 8th day of July, 1986 the defendant sold his house situate at No. K.20, Chawai Road, Tudun Wada, Kaduna to the plaintiff for the sum of N35,000.00 (Thirty five thousand Naira) only.

4. Pursuant to the said contract of sale, the plaintiff paid to the defendant the said sum of N35,000.00k as full purchase price for the house and the defendant issued to the plaintiff his official receipt of the purchase price. The plaintiff will at the hearing of the case tender and rely on the original copy of the said receipt.
5. The defendant in addition surrendered to the plaintiff all the relevant documents concerning the house including original of the certificate of occupancy No. 006782. The plaintiff will at the hearing of this case tender and rely on the copy of the said certificate of occupancy.
6. The plaintiff subsequently applied and obtained a transfer of the right of occupancy and a new certificate of occupancy, No. KDA/A/002763 dated 6th day of October, 1986 was issued to the plaintiff in its name by the Kaduna Local Government. The plaintiff will at the hearing of this case tender and rely on the original copy of the said certificate of occupancy.
7. In breach of the said agreement the defendant has since the transaction refused to vacate and deliver possession of the house to the plaintiff and is still trespassing thereon.
8. WHEREOF the plaintiff claims against the defendant the following:

a. Possession of the said piece of land;

b. A declaration that the certificate of occupancy No. KDA/A/002763 affecting and concerning the piece of land at K.20 Chawai Road, Tudun Wada, Kaduna, vests valid title to the land on the plaintiff;

c. Specific performance of the said agreement;

d. A perpetual injunction restraining the defendant, his agents, heirs and servants from interfering on the property.

e. The sum of N100,000.00k (one hundred thousand naira) only as damages for the trespass committed on the said property; and

f. The sum of N12,500.00 (twelve thousand and five hundred naira) only as arrears of rents collected by the defendant from tenants in respect of the said property from July 1986 to December, 1988 at N5,000.00k (five thousand naira) only per annum and subsequent rents to be collected as from January, 1989 to the date the property is delivered to the plaintiff.”

Statement of Defence:

“2. The defendant deny that he sold his house situate at No. K.20 Chawai Road, Tudun-Wada, Kaduna to the plaintiff for the sum of N35,000 as alleged in paragraph 3 of plaintiff’s statement of claim.

3. Furthermore, defendant states that the said house is not his house but a family house being one of the immovable properties in the estate of his late father Alhaji Mammam Tela who died on the 18th day of December, 1984.
4. The defendant deny the contention that he issued a receipt of purchase price as claimed in paragraph 4 of the statement of claim as the said note does not qualify as a memorandum of sale of house.
5. Additionally, the defendant contends that the transaction between the plaintiff’s representative and the defendant was conducted subject to contract or words of similar effect.
6. Defendant in further answer states that certain essential terms of the contract are yet to be worked out and said negotiation was substantially oral with very little in writing.
7. Defendant in answer to paragraph 5 of plaintiff’s statement of claim states that the release of the certificate of occupancy No. 006782 was meant as a sign of good faith and as a security for the sum of N35,000.00 left behind by plaintiff’s representative.
8. Defendant contends that it was clearly understood during the discussion cum negotiation with plaintiff’s representative that acceptance and conclusion of the contract could only be with the general consensus of majority members of the family inheritors estate Late Alhaji Mamman Tela and this was clearly understood to be a condition precedent to the contract.
9. That the change of certificate of occupancy by the plaintiff was completely behind the back of the defendant who was still under the impression that negotiation was still going on between the parties and so on.
10. The defendant was not a party to any application for transfer of ownership with the plaintiff and the certificate of occupancy No. KDA/A/002763 dated the 6th day of october, 1986 and obtained by the plaintiff as alleged in paragraph 6 of the statement of claim must have been invalidly and wrongfully obtained.
11. Defendant in answer to paragraph 9 of the plaintiff’s statement of claim deny that he breached any agreement and that he refused to vacate and deliver possession and is not and or has not been guilty of trespass thereon.
12. Defendant shall aver at the hearing of this matter that there was no enforceable contract as the acceptance of plaintiff’s offer was made inter alia of subject to approval of consensus of other family members.
13. The defendant thereafter summoned a meeting of members of his family whereat amongst other decisions; the decision was taken regarding the general consensus that the house in dispute should not be sold and the refund of plaintiff’s money was also ordered. Minutes of the said meeting held at Lafia, Plateau State on 26th july, 1986 is hereby pleaded and shall be relied upon at the hearing of this suit. Further that the written document referred to in paragraph 4 of plaintiff’s statement of claim as acknowledging the receipt of N35,000.00 was not intended to be regarded as one comprehensive document embodying all the terms and conditions of the contract.
14. WHEREOF the defendant denies the plaintiff’s claim in its entirety and in particular paragraphs 11 (a) to (f) of the statement of claim and shall urge this honourable court to dismiss the reliefs sought by the plaintiff with substantial costs….”

The notice of appeal filed contains three grounds of appeal and the following two issues are identified in the defendant’s brief for determination in the appeal:

“1. Whether the Court of Appeal was correct in affirming the reliefs of specific performance, immediate possession and injunction over the property situate at No. K.20 Chawai Road, Tudun Wada Kaduna when there was irrefutable evidence that the property did not belong to the appellant and when the respondent’s pleading was not supported by the evidence led in the trial court

2. Whether the Court of Appeal was right in limiting the interest of the appellant’s 3 co-heirs to the purchase sum of N35,000 when there was evidence that the entire transaction was without their consent and if answered negatively, whether the disclosure of this interest did not vitiate the entire transaction between the respondent and the appellant

At the hearing of the appeal, the learned Senior Advocate appearing for the appellant adopted and relied on the arguments in the defendant/appellant’s brief and reply brief. The learned counsel for the respondent did the same. None proffered oral argument. It was the contention of Mr Daudu, SAN that the findings of the courts below are erroneous in law having regard to the facts settled on the pleadings and the legal conclusions to be drawn from those facts. He referred the court to paragraph 12 of the amended statement of claim where the plaintiff averred that on the 8th day of july, 1986, the defendant sold his house situate at K.20 Chawai Road, Tudun Wada, Kaduna for the sum of N35,000.00 to it and that at the hearing, the evidence of the plaintiff and its witnesses were completely at variance with its pleadings and that in answer to cross-examination Alhaji Ahmed Sule (PW.1), plaintiff’s managing director stated that the original certificate of occupancy of the property was in the name of the defendant’s father Alhaji Mamman Tailor (sic). It was further submitted in the appellant’s brief that PW.1 in his evidence in chief testified that he investigated the title to the property and discovered that it was inherited by the defendant and his co-heirs.

It was further submitted by Daudu, SAN that that piece of evidence as with many others was in conflict with the statement of claim in view of the fact that the plaintiff expressly pleaded that the defendant sold his own property and not that, it was property jointly owned with his co-heirs. It was also submitted that the issue placed before the court below had nothing to do with the person with whom the plaintiff dealt with in the transaction. That the issue was whether the property was owned by the defendant as pleaded by the plaintiff and if it was owned by the defendant, whether the entire transaction was caught by the maxim nemo dat quod non habet. If on the other hand the property was owned by the defendant and his co-heirs, then it was mandatory for the respondent to have either amended its statement of claim or filed a reply to the statement of defence because in the absence of either of the above measures, the evidence offered by the plaintiff that it took all necessary precautions to seek the consent of all the co-heirs would go to no issue, having based its claim on the fact that the defendant was selling his own property. The court was referred to the case of Akeredolu v. Akinremi (1989) 3 NWLR (Pt.108) at 164 which dealt with proper function of reply in pleadings.

On issue (1), the learned Senior Advocate concluded thus:

” ….. that the Court of Appeal ought on the strength of the above decision have set aside the judgment of the learned Chief Judge since it was apparent that as the evidence that was used to justify the respondent’s case was not supported by the state of its pleadings….that the Court of Appeal was under a duty not to accredit or sustain the High Court’s findings which was based on unpleaded evidence or evidence that was at variance with the pleadings. See the case of Adimora v. Ajufo (1988) 3 NWLR (Pt.80) 1 at 75 The truth of the matter is that the property in dispute is the subject of inheritance among the appellant and co-heirs, consequently it was apparent that the appellant had nothing to convey to the respondent.”

The learned Senior Advocate referred the court to the case of Ajuwon v. Akanni (1993) 3 NWLR (Pt.316) 182 at 202 where this court applied the maxim nemo dat quod non habet to defeat the claim of an unwary purchaser who bought a parcel of land from the wrong vendors. The court was urged to apply the maxim to this case because the plaintiff was aware that the property in dispute was subject to inheritance rights but chose to deal with the defendant as if the defendant was the beneficial owner who could single handedly convey the property to it.

Two issues were formulated in the respondent’s brief and they overlap with those identified by the defendant. The court will consider all the issues identified in both briefs together.

On issue (1), it was submitted in the plaintiff/respondent’s brief that the onus of proof that the contract was subject to ratification by the co-heirs was on the defendant and that he failed to discharge that burden. The court was referred to section 138 of the Evidence Act. It was further submitted in the plaintiff’s brief that taking the pleadings into consideration, the sabstratum of the case was whether there was a sale of the house in dispute, that issue was joined on that point and as the defendant had interest in the property being a co-heir, it would be right to say that the property was his. It was conceded in the plaintiff’s brief that parties are bound by their

pleadings as well as the court and that in the present case, the crux of the plaintiff’s pleadings was that the property in dispute was sold by the defendant to the plaintiff for the sum of N35,000.00 and that the documents of title were handed over. As to whether all the heirs entitled to the property consented to the sale, it was submitted that the evidence of P.W.3 was encompassing and compelling on the issue because he stated positively in his evidence that the co-heirs to the property consented to the sale and that PW4 corroborated this fact in his own evidence and that the contents of exhibit “4” – the minutes of the family meeting held by the heirs cannot defeat the positive testimonies of PW3 and PW4 on the issue of consent. The court was reminded that the defendant is challenging the concurrent findings of fact by the two lower courts and that he failed to advance any cogent reason why the findings should be set aside. He cited the cases of U.B.A. Ltd. v. Achoru (1990) 6 NWLR (Pt.156) 254 at 275-276; Ojomu v. Ajoo (1983) 2 SCNLR 156, (1983) 9 SC 22 at 53; Are v. Ipaye (1990) 2 NWLR (Pt.132) 298 at 308-309 and Wakoma v. Kalio (1995) 9 NWLR (Pt 18) 131 at 138. We were urged to resolve the issue in favour of the plaintiff. The defendant/appellant’s complaint in issue (1) is that the courts below should not have given judgment to the plaintiff in view of the fact that its evidence was at variance with its pleadings. The plaintiff pleaded in paragraphs 3 and 4 of its amended statement of claim as follows:

3. On the 8th day of july, 1986 the defendant sold his house situate at No. K.20 Chawai Road, Tudun Wada, Kaduna to the plaintiff for the sum of N35,000.00 (thirty five thousand naira) only.
4. Pursuant to the said contract of sale, the plaintiff paid to the defendant the said sum of N35,000.00k as full purchase price for the house and the defendant issued to the plaintiff his official receipt of the purchase price ………… ” The defendant denied the above averments in paragraphs 2,3,4,5,6 and 8 of the statement of defence as follows:

“2. The defendant deny that he sold his house situate at No. K.20 Chawai Road, Tudun Wada, Kaduna to the plaintiff for the sum of N35,000.00 as alleged in paragraph 3 of the plaintiff’s statement of claim.

3. Furthermore, defendant states that the said house is not his house but a family house being one of the immovable properties in the estate of his late father Alhaji Mamman Tela who died on the 10th day of december, 1984.
4. The defendant deny the contention that he issued a receipt of purchase price claimed in paragraph 4 of the statement of claim as the said note does not qualify as a memorandum of sale of house.
5. Additionally, the defendant contends that the transaction between the plaintiff’s representative and the defendant was conducted subject to contract or words of similar effect.
6. Defendant further states that certain essential terms to the contract are yet to be worked out and said negotiations was substantially oral with very little in writing.
7. Defendant contends that it was clearly understood during the discussion cum negotiation with the plaintiff’s representative that acceptance and conclusion of the contract would only be with the general consensus of majority members of the family inheritors estate Late Alhaji Mamman Tela and this was clearly understood to be a condition precedent to the contract.”

The plaintiff in paragraphs 3 and 4 of its amended statement of claim averred that the property it bought from the defendant belonged to the latter and that a receipt for the purchase price of N35,000.00 was issued by the defendant. Paragraph 3 of the amended statement of claim reads:

“3. On the 8th day of July, 1986, the defendant sold his house situate at K.20 Chawai Road, Tudun-Wada, Kaduna for the sum of N35,000.00 (Thirty Five Thousand Naira) only.”

At the trial, Alhaji Ahmed Sule (PW.1) managing director of the plaintiff company testified as follows:

“Before paying the price we investigated ownership of the property and we discovered that it was an inherited house. In other words it was inherited by the defendant and his co-heirs. We knew that the house was for sale because an estate agent Alhaji Mohammed came and told us. I asked the estate agent to take me to the owner and he took me to Sarkin Tudun Wada. Sarkin Tudun Wada told me that the house was jointly owned by the defendant and his relatives, who jointly mandated him to sell it for N35,000. I accepted to buy it . The original certificate of occupancy was in the name of the defendant’s late father Alhaji Mamman Tailor (sic).”

The above piece of evidence was at variance with the plaintiff’s amended statement of claim. It must be pointed out that a plaintiff is held to the case put forward in his writ of summons and pleadings. Before the trial comes on, it is highly desirable that parties should know exactly what they are fighting about, otherwise they will go into great expense in procuring evidence to prove at the trial facts which the other party will immediately concede. See AC.B. v. Attorney-General of Northern Nigeria (1967) NMLR 231; Oduka v. Kasunmu (1968) NMLR 28 and National Ins. Corp of Nigeria v. Power & Ind. Eng. Co. Ltd. (1986) 1 NWLR (Pt.14) 1. The plaintiff would have filed a reply setting out his knowledge of the joint ownership of the property and that it took every precaution to secure the consent of all the co-heirs. See Akeredolu v. Akinremi & Ors. (1989) 3 NWLR (Pt.108) 164. If a reply had been filed, part of the evidence of the plaintiff reproduced above would have been admissible and the courts below would have legitimately evaluated it. As the evidence stood, it went to no issue. The defendant both in his statement of defence and evidence maintained that the property situate at No. K.20 Chawai Road, Tudun Wada, Kaduna jointly belonged to him and other children of his late father and that the sale was subject to ratification by them. The said ratification/consent was refused. Going back to the plaintiff’s pleadings, its case was that the property it bought belonged to the defendant who was paid the purchase price, issued a receipt to that effect and surrendered the original of the certificate of occupancy to it. The receipt exhibit “2” issued to the plaintiff by the defendant did not show that the property belonged to the defendant. It was only an “acknowledgement receipt of the sum of thirty five thousand naira (35,000.00) only from Messrs. Klargester Nig. Ltd. Kaduna being cost of House No. K20 Chawai Rd Kd.” The original certificate of occupancy on the admission of the plaintiff’s witness, (P.W.1) bore the name of Alhaji Mamman Tela the father of the defendant who died intestate leaving children and widows among whom is the defendant. The plaintiff did not take the necessary precaution which a prudent man would have taken in the circumstances. If it had examined the certificate of occupancy, it would have discovered that the defendant was not the owner of the property it was purporting to buy and the discovery would have put it on its enquiry. Since the plaintiff did not examine the certificate of occupancy, how could it have conducted a search to satisfy itself that the property did not belong to the defendant. The only reasonable conclusion to be drawn is that the plaintiff knew that the property did not belong to the defendant. This gave credence to the defendant’s case that the sale was subject to ratification by his co-heirs and that they refused to ratify the sale. See Ajuwon v. Akanni (1993) 9 NWLR (Pt.316) 182. The learned trial Chief Judge should have dismissed the claim of the plaintiff on the ground that his evidence was at variance with the averments in the amended statement of claim. See Oredoyin & Ors. v. Arowolo (1989) 4 NWLR (Pt.114) 172; Akpapuna v. Obi Nzeako II (1983) 2 SCNLR 1, (1983) SC 25. The court below was also in error when it affirmed the decision of the trial court. There can be no question that the plaintiff did not prove its case and that the defendant has no authority to sell the property to the plaintiff. This is a proper case where the courts below should have applied the maxim nemo dat quod non habet and caveat emptor. The property belonged to the defendant’s father who died intestate and was survived by the defendant and a host of other sons, daughters and widows who jointly own the house with him. The evidence of the defendant that the co-heirs did not ratify the sale was not contradicted. The evidence of P.W.3 and PW4 to the effect that the consent of the co-heirs was obtained before the sale was inadmissible because it was not pleaded by the plaintiff and no reply was filed by the plaintiff. In the circumstance, the defendant had nothing which he could contract to convey to the plaintiff. The purported contract was void ab initio. The plaintiff did not acquire even an equitable interest in the property and exhibit “2” is ineffectual to convey the legal estate in the property to him in the absence of ratification of the contract by the family. See Adedibu & Or. v. Makanjuola (1944) 10 WACA 33 at 36 and Akerele v. Atunrase (1969) 1 All NLR 201.

(Issue (2) The court below erred when it held as follows:

“….I will say straight away that no one disputes that the co-heirs has (sic) interest in the house, but as far as the circumstances of this case are concerned their interest centred on the sharing of the proceeds of the purchase price, the N35,000.00.Having their signatures on the sale agreement in my view is not the determining factor, whether a valid contract of sale existed between the appellant and the respondent. ”

The court below misconceived the issue in controversy. The subject-matter of the dispute is whether the defendant owned the property or had authority to sell the property which is a subject-matter of inheritance and not the interest of co-heirs in the purchase price of N35,000.00.

The equitable reliefs of specific performance and injunction ordered by the trial court ought not have been made and the court below should have vacated them. Specific performance cannot be ordered against a person who has agreed to sell land/house which he does not own and the co-heirs cannot be compelled to convey to him because the court does not compel a person to do what is impossible. See Bansedun v. Iyabo (1962) 1 All NLR (Pt.2) 710. There was no enforceable contract at the time of the contract or at the time when the action was instituted. It was contended in the plaintiff/respondent’s brief that this court should not disturb the concurrent findings of the courts below. The plaintiff woefully failed to prove its case and the courts below should have dismissed the action. The findings of the courts below led to a miscarriage of justice warranting the intervention of this court. In conclusion, I find myself unable to uphold the judgment of the court below which affirmed the judgment of the trial court. I hereby allow the appeal and dismiss the plaintiff’s claim with N10,000.00 costs to the defendant.

SC.114/1995