Dalfam Nigeria Limited V. Okaku International Limited & Ors (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ABUBAKAR DATTI YAHAYA, J.C.A.(Delivering the Leading Judgment)

This appeal is from the judgment of the High Court of the Federal Capital Territory in consolidated Suits Nos. FCT/HC/CV/207/02 and FCT/HC/CV/407/02, delivered on the 13th day of May 2008.

The 1st respondent herein, as plaintiff, instituted the said two Suits at the High Court of the Federal Capital Territory Abuja. The two Suits were consolidated. The appellant herein, filed a defence and a counter claim to the two Suits. It was the dissatisfaction of the judgment by the appellant that led to this appeal.

The first respondent was allotted Plot No.697 at Area BC Asokoro District Abuja, covered by certificate of Occupancy No.FCT/ABU/MISC 3562. The 1st respondent failed to develop the property within the stipulated period, and the 3rd respondent threatened to revoke it. In order to avoid this revocation, the 1st respondent agreed to sell the Plot No. 697 to the appellant for the sum of N28,000.000, They executed a Deed of Assignment and the 1st respondent donated a Power of Attorney to the appellant.

The two documents are Exhibits J1 and J2 respectively. The purchase price was reflected as paid in Exhibit J1. The 1st respondent let the appellant into possession, and it commenced development. It made a part-payment of N12,000.000.

When a demand for the payment of the balance was not honoured, the 1st respondent approached the 4th respondent for a sub-division of the plot. This was done and Plot No. 697A, was carved out of the entire Plot No. 697, for the appellant. The remainder was given out to other persons.

The trial court set aside this sub-division of Plot No. 697, by the 4th respondent, but awarded a portion of the original Plot 697, to the appellant as Plot No. 697A, which is the portion developed by the appellant. The court restrained the appellant from the portion of Plot No. 697 that was not developed by it. Hence this appeal.

In keeping with the Rules of this Court, the parties filed their written briefs. The appellant’s brief was filed on the 18/6/2010. The 1st respondent filed its brief on the 6/12/11 but was deemed filed on the 16/10/12. The 2nd – 4th respondents filed their joint brief on the 19/3/13 but was deemed filed on the 4/6/13.

The appellant’s brief identified 4 Issues for determination, which are –

1. Whether the trial court was right in holding that the 1st respondent could/did rightly apply to the 4th respondent (3rd defendant) for subdivision of Plot No. 697 (into Plot No.697A) after the appellant had acquired an equitable interest in Plot No.697.
2. Whether the lower court had rightly applied the decision in BIYO VS. AKU to this case to discharge the 1st Respondent from liability to perform the contract.
3. Whether the non-payment of the full purchase price of the property vitiated the binding effect of the sales contract between the 1st Respondent and the Appellant.
4. Whether the judgment is not against the weight of evidence adduced before the Court.

In the 1st respondent’s brief settled by Mr. S. Zibiri, four issues were also distilled. They are –

1. Whether the lower court was right in holding that the 1st Respondent did rightly apply to the 4th Respondent for sub-division of Plot No. 697 into Plot (697A) in the light of the circumstances of the case.
2. Whether the court below rightly applied the judicial authority of BIYO VS. AKU and other relevant authorities to this case in deciding that the 1st Respondent was not liable to fully perform a fundamentally breached contract of sale of land.
3. Whether failure to fulfill fundamental terms and condition of a contract of sale of land cannot be said to have frustrated the full implementation of the contract considering the facts of the instant case.
4. Whether the judgment of the lower court is well supported by the weight of evidence adduced before the lower court.

The 2nd – 4th respondents’ brief was settled by Mr. J. O. Abasi, and the four issues distilled for resolution therein, are exactly the same as those distilled by the 1st respondent. Considering the grounds of appeal filed, I find the issues identified by the parties to be similar. I shall therefore utilize the issues identified by the appellant in resolving this appeal.

ISSUE NO 1

Whether the trial court was right in holding that the 1st respondent could/did rightly apply to the 4th respondent (3rd defendant) for sub-division of Plot No. 697 (into Plot No. 697A) after the appellant had acquired an equitable interest in Plot No. 697.

On this issue, learned counsel for the appellant submitted upon relying on the cases of UNION BANK PLC VS. ERIGBUEM (2003) FWLR (Pt.180) 1365 at 1399; DOHERTY VS. IGHODARO (1997) 11 NWLR (Pt.530) 694 and BIYO vs. AKU (1996) 1 NWLR (Pt 422) 1 at 38, that an agreement to sell land is complete and concluded when the parties, the subject matter, the nature of the transaction and the considerations are agreed upon. He then referred to exhibits J1 and J2 to say that they established the agreement to sell the land in question, between the appellant and the 1st respondent. Since this is the case, it was erroneous he argued, for the trial judge to hold as he did at page 400, lines 12 – 25 of the record, that exhibits J1 and J2 only show an acknowledgment of receipt of purchase price of the property and nothing more. He cited THOMPSON vs. AROWOLO (2003) FWLR (Pt.164) 315 to back his position. He also referred to page 398 lines 5 – 6, 401 lines 27 – 31 and 402 lines 1 – 15 to submit that the appellant had made part payment of the agreed consideration, was put in possession of Plot No. 697 and had commenced development on it as agreed by the parties, before the 1st respondent wrote Exhibit J6 to the appellant. The appellant he argued, had acquired an equitable interest in Plot No. 697 which is capable of being converted to a legal estate by specific performance – SHOBAJO vs. IKOTUN (2003) FWLR (Pt.172) 1751 at 1764 – 5 and NSIEGE VS. MGBEMENA (2007) ALL FWLR (Pt. 372) 1769 at 1779.