Bola Omoniyi V. Jacob Adegboyega Alabi (2003)

LawGlobal-Hub Lead Judgment Report

MURITALA AREMU OKUNOLA, J.C.A. 

This is an appeal against the decision of the High Court of Justice of Osun State, holden at Osogbo, presided over by Olowofoyeku, J. (as he then was) delivered on 3/3/97 dismissing the plaintiff’s claim. The appellant before this court was the plaintiff, while the respondent was the defendant.
The facts of this case briefly put were as follows:

The appellant in 1993, purchased from the respondent, a parcel of land, with four flats, completed building at Osogbo, for a sum of N350,000.00. The respondent and the agents of the appellant, jointly went and together, instructed a Barrister & Solicitor at Osogbo, to prepare a sale agreement, which was prepared and executed by the parties. The respondent, in addition, wrote letters to the tenants occupying the building, notifying them of the sale and transfer of the property to the appellant.

The respondent being resident at Osogbo, while the appellant was at Abuja, continued to collect rents and refused to obtain the consent of the Governor of Osun State, to assign the property as required by the Land Use Act.

Consequently, the appellant commenced this action seeking the following reliefs:
“1. An order of specific performance of an agreement between the plaintiff and the defendant, dated 9th October, 1993, for the sale by the defendant to the plaintiff of all that piece and parcel of land, measuring approximately 1332.005 square metres, with the building thereon consisting of 4 flats and one uncompleted flat, situate and lying and being at old Ikirun Road, covered by survey plan No. RAB/655/0Y/89.

2. An order directing the defendants to procure and tender to the plaintiff within thirty days from the date of  judgment, the consent of the Military Governor/Administrator of Osun State, with a view to register deed of assignment.

3. An order directing the defendant to give account of all monies received as rents on the plaintiff’s property from December, 1993, till the date of judgment.

4. An order of perpetual injunction, restraining the defendant by himself through his servants, agents or any person however, deriving authority from the defendant from dealing with or interfering with the plaintiff’s occupation and peaceful enjoyment of the property.”

Pleadings were filed and exchanged. Parties gave evidence and called witnesses, all of whom were cross-examined and the trial Judge was addressed. The defendant on his own side denied any contract of sale of his house to the plaintiff. His case was that he sought loan of N350,000.00 from Adebagbo, who operated a finance company and who originally was the 2nd defendant in this suit.

He was struck out of the case on the ground that no reliefs were claimed against him. He later became PW1 in this case. The defendant deposited with Mr. Adebagbo his plan and title papers as security for the loan.

The defendant did not know the plaintiff and had no business with him. When the money was ready, Mr. Adegbabo asked him to sign a document before he could take away the money. The defendant refused to sign the document, when he discovered that it was an agreement purporting to transfer his said house to the plaintiff for N350,000.00. But the defendant eventually had to sign the document and other as a result of the fraudulent misrepresentation from the said Mr. Adebagbo and one, Alhaja Abeke Babatunde PW2. They persuaded him to sign the documents relating to the transfer, which documents, as they represented would be destroyed, if he repaid the loan within the agreed period of three months.

When the respondent became suspicious of the transaction, he petitioned to the police against Mr. Adebagbo and Alhaja Abeke Babatunde and they were arrested by the police and charged to court for, inter alia, obtaining money under false pretences. The defendant refused to be bound by the purported sale of his house.

At the end of trial, the learned trial Judge delivered a considered judgment. In his judgment, the learned trial Judge dismissed the plaintiff’s case in its entirety holding that:
“(i) The defendant admitted under cross-examination that he graduated in B.S.C. (Accounting) at Ahmadu Bello University, in 1973 and as at all material times, a Manager at Osogbo Steel Rolling Company. He knew the content of exhibits A, C, C1 and E before he signed them. He signed the document only because he had been induced by some representation, concerning the loan he wanted and he reported to the police when he discovered fraud and misrepresentation for the purpose of the contract. Page 35.

(ii) It is difficult to say that he was naive and if his story is true as it did seem, then it must mean simply that on his part, the allure of the immediate procurement of the fund, he was seeking out-weighed the danger of the condition or consideration that attached to the release of the money he was seeking, which condition or consideration he with full advertence to their import, albeit recklessly or foolishly in the circumstances, decided to comply with, namely the signing of documents evidencing the sale of his property. Page 35 (sic).