Christopher Olutunde Ishola V. Bashiru Akanfe Oluwalogon (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

HARUNA SIMON TSAMMANI, J.C.A. (Delivering the Leading Judgment)

Before the Oyo State High Court, Ibadan Judicial Division, the Respondent who was the plaintiff sued the Appellant (Defendant) claiming the following reliefs:

(a) DECLARATION that the plaintiff is entitled to an order of specific performance of an agreement for sale of the property situate and lying at Kajola Area of Monatan, Ibadan made between the plaintiff and the late David Oluwole Isola dated 15th May, 1976.

(b) DECLARATION that the title in the said property has passed to the plaintiff by virtue of the said agreement.

(c) ORDER of specific performance of the said agreement.

(d) AN ACCOUNT and recovery of all the monies due and/or collected by the Defendant on the said property up to the date judgment is delivered in this suit.

(e) INJUNCTION restraining the Defendant whether by himself, his servants, agents and/or privies or otherwise howsoever from dealing with the said property as owner thereof.

The Writ of Summons and attendant statement of claim was initially initiated against, David Oluwole Ishola, the father of the Appellant. However, in the course of the proceedings, the said David Oluwole Ishola, died and was consequently substituted with his son, Christopher Olutunde Ishola who defended the action at the trial court and is now the Appellant.

The Statement of Claim was amended twice with Consequential amendments to the statement of defence. The matter was accordingly heard on the Respondent’s Further Amended Statement of Defence dated the 29/04/2004 and filed the same date, and the Amended Statement of Defence filed the 23/01/2003. There was also a Reply to the Statement of Defence filed on the 24/1/2003.

A brief resume of the Respondent’s case is that, sometime in 1991 David Oluwole Ishola, father of the present Appellant entered into an agreement wherein the said David Oluwole Ishola agreed to and did sell to the Respondent certain property situate and lying at Kajola Area, Monatan, Ibadan. That the property consisted of four flats of three bedrooms each. According to the Respondent the Appellant’s father had fixed the price at one hundred and thirty thousand naira (N130,000.00) and that upon inspection of the said property, he (Respondent) signified his interest in buying the property at that price.

That when the purchase price was to be paid the said David Oluwote Ishola changed his mind and informed the Respondent in the presence of the Estate agent and one Mr. Oshin that he would sell at One hundred and fourty-seven thousand naira (N147,000.00) only. The Respondent agreed and handed over to Mr. Oshin who was the agent of David Oluwole Ishola the sum of One hundred and thirty thousand naira (N130,000.00) with a promise to pay the balance of seventeen thousand naira (N17,000.00) the following day, which he did.

That upon the payment of the sum of one hundred and fourty-seven thousand naira (N147,000.00) David Oluwole Ishola handed over to the Respondent the Original Survey Plan, Building Plan No. 37/LA/C/7174 dated 30/7/1984 and a photocopy of the Agreement with which the said David Oluwole Ishola bought the house.

It is also the Respondent’s case that, having paid the purchase price in full, a Sale Agreement was duly prepared on the instruction of David Oluwole Ishola, which was then duly executed by the parties and their witnesses. That though the said Agreement (Exhibit ‘A’) was made and executed in 1991, it was backdated to 1976, in accordance with the usual practice. The vendor, Mr. David Oluwole Ishola, did not put the Respondent into possession of the property on the ground that there were tenants in the house whom he had given notice to quit the property within three months. However, on expiration of the three months, David Oluwole Ishola started given excuses, and failed or refused to give vacant possession of the property to the Respondent. The Respondent in the circumstances, had no option that to approach the High Court claiming the reliefs as contained in paragraph 20(i)-(v) of the Further Amended Statement of Claim.

The case of the Appellant is that, the sum of One hundred and fourty-seven thousand naira (N147, 000.00) paid by the Respondent was a part payment of the actual price of the property demanded by David Oluwole Ishola. That the actual price for the property was Five hundred thousand naira (N500,000.00), but that the sum of one hundred and fourty-seven thousand naira (N147,000.00) was inserted in the sale Agreement so as to reduce the amount to be paid on application for a certificate of occupancy.