Dr. Benjamin Ohiaeri V. Alhaji B. I Yussuf (2009)

LAWGLOBAL HUB Lead Judgment Report

F. TABAI. J.S.C

This is an appeal against the judgment of the Court of Appeal delivered on the 8th of May, 2003. The action was initiated by a writ of summons issued at the High Court of Lagos State and was filed on the 18th of August, 1992. The plaintiffs are the 1st and 2nd respondents both at the court below and in this court. The 3rd defendant is the appellant at the court below and before us. The claim as contained in the amended statement of claim dated 22nd of April, 1996 was for the following reliefs:

(i) A declaration that the agreement made sometime in 1982 between the 2nd plaintiff and the 1st and 2nd defendants for the assignment of the unexpired residue of the leasehold interest in the property known as plot 1164 Saka Tinubu Street Victoria Island, Lagos covered by certificate of occupancy issued on the 10th of February, 1983 and registered as no. 84 page 84 in volume 1982 at the Lagos State of Nigeria Land Registry is valid, subsisting and binding between the parties.

(ii) An order of specific performance of the agreement made in 1982 between the 2nd Plaintiff and 1st and 2nd defendants for the assignment of the unexpired residue of the leasehold interest in the property known as plot 1164 Saka Tinubu Street, Victoria Island Lagos covered by certificate of occupancy issued on the 10th of February, 1983 and registered as no.84 page 84 in volume 1982 at the Lagos State of Nigeria Land Registry is valid, subsisting and binding between the parties.

(iii) A further declaration that any purported sale, transfer, assignment and/or lease of the said property in favour of the 3rd defendant or any other person is null and void and of no effect whatsoever.

(iv) A perpetual injunction against the 3rd defendant, his servants, agents and/or privies restraining them from further acts of trespass in the said property.

(v) Further order of perpetual injunction against the 4th and 5th defendants restraining them, their agents or servants from granting consent in respect of any disposition of the said property in favour of the 3rd defendant or any other person.

(vi) An order of possession of the said property in favour of the 2nd plaintiff.

ALTERNATIVELY

The plaintiff claims the sum of N150,000,000.00 (one hundred and fifty million Naira) being damages for breach of the agreement made in 1982 between the 2nd plaintiff and the 1st and 2nd defendants for the assignment of the unexpired residue of the leasehold interest in the property known as Plot 1164 Saka Tinubu Street Victoria Island, Lagos covered by certificate of occupancy issued on the 10th day of February, 1983 and registered as no 84 page 84 volume 1982 at the Lagos State of Nigeria Land Registry.

Pleadings were filed and exchanged. Only the 3rd defendant reacted to the processes served on him and filed his statement of defence. After both the statement of claim and statement of defence had undergone several amendments the matter proceeded to trial. By his judgment on the 24th of September, 1999, the learned trial judge D.F. Akinsanya J allowed the claim and granted all the reliefs (i)-(vi) as claimed. He also awarded the sum of N3,500,000.00 to the plaintiffs/respondents representing damages for loss of use of the subject property. The 3rd defendant/appellant was not satisfied and proceeded to the court below on appeal. By its judgment on the 8th of May, 2003 the appeal was dismissed. The 3rd defendant/appellant was still not satisfied and has come on appeal to this court. It has to be noted that while the case was fought at the trial High Court and the Court of Appeal by 3rd defendant/appellant and the plaintiff’s/1st and 2nd respondents, the 3rd ,5th and 6th respondents who never participated in the proceedings at the two courts below have also filed their briefs of argument. The appellant’s brief dated 17th of May, 2005 was prepared by Remi Olaopa (Mrs). The 1st and 2nd respondents’ brief dated 14th of March, 2006 was prepared by Tunde Akinrimisi. Uko E. Udom prepared the 3rd respondent’s brief. And the brief of the 5th and 6th respondents dated 17th of January, 2007 was prepared by Lawal Pedro (now SAN).

In the appellant’s brief, two Issues for determination were identified, namely:-

1. Whether exhibit ‘A’ relied on by the lower court was capable of vesting the plaintiff/respondent with an equitable interest in the property in dispute.
2. Whether the purported agreement by the 3rd respondent to sell the property in dispute to the plaintiffs/respondents was capable of founding an order of specific performance.

These two issues were adopted by the respondents in their respective briefs.

The substance of the submissions of Remi Olaopa (Mrs) in the appellant’s brief is as follows: Learned counsel referred to the undisputed facts of the property being part of the estate of late Hon. Justice Daniel Ibekwe and over which the 3rd and 4th respondents (1st and 2nd defendants are administrators/executrixes) and submitted that the purported sale evidenced in exhibit ‘A’ without the concurrence of both administrators is, by virtue of section 4(2) of the Administration of Estate Law Cap.3 Laws of Lagos State, null and void. It is for the same reason that the agreement in exhibit ‘A’ is incapable of founding an order of specific performance, counsel argued.