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.

As I stated earlier above, the 3rd respondent was the 1st defendant at the trial court. She did not file a defence nor did she take part in the proceedings thereat in any other way. She never filed an appeal to the court below nor has she filed an appeal to this court. She has however filed a brief urging in substance not to affirm the concurrent decisions of the two courts below.

In the said 3rd respondent’s brief, Uko E. Udem reiterate the principle that where a person pays for land, obtains receipt and takes possession of same, he has an equitable interest in the land and relied on SHOBAJO v IROTUN & ANOR (2003) 4 NWLR (Part 840) 237. Similarly, where there is an agreement for the sale of land and the purchase price is paid to the vendor an equitable interest is created in favour of the purchaser, counsel argued. It was the further argument of learned counsel that as between the appellant on the one hand and the 1st and 2nd respondent on the other, there are conflicting equities and applying the latin maxim qui prior est jure tempere potior est jure – meaning he who is earlier in time is stronger in law – the appellant having fully paid for and taken possession of the disputed property has acquired his equitable interest thereto. With respect to the agreement for sale in exhibit ‘A’ it was the submission that the 3rd respondent being only one of the two administratrixes of the property cannot, without the concurrence of the 4th respondent, bind the estate of Late Justice Daniel Ibekwe. Reliance was placed on KWARA INVESTMENT CO. LTD v GARUBA (2000) 10 NWLR (Part 674) 25 at 39; OMEGA BANK PLC v O.B.C. LTD (2005) 8 NWLR (Part 928) 547 at 576 and 581 and s4(2) of the Administration of Estate Cap 3 Laws of Lagos State. Learned counsel submitted that by virtue of the said provision the agreement in exhibit ‘A’ entered into by only one of the two administratrixes is null and void. Counsel relied further on IBRAHIM v OJOMO & ORS (2004) 4 NWLR (Part 862) 89 at 106-108. On the 2nd issue, it was the submission of the 3rd respondent that the agreement in exhibit ‘A’ upon which the court below ordered specific preference is legally defective and that the disability therein vitiates the contract notwithstanding the manifest intention of the parties. Counsel cited HELP (NIG) LTD v SILVER ANCHOR (NIG) LTD (2006) 5 NWLR (Part 972) 196 at 208-209, IBRAHIM v OJOMO (supra), MOHAMMED v KLARGESTER (NIG) LTD (2002) 14 NWLR (Part 787) 335 at 360-361. In conclusion the 3rd respondent urged this court to decide the use on the application of the correct legal principles.

On behalf of the 1st and 2nd respondents, Tunde Akinrimisi proffered the following arguments. Counsel referred to exhibit ‘A’ as a written acknowledgement of the payment and receipt of money for the sale of the subject property. According to counsel, it is an irrevocable evidence of an agreement to transfer title of the land to the 2nd respondent. He submitted that where a person pays the purchase price of land and he is, in consequence thereof put in possession, he acquires an equitable interest in the land which is as good as a legal estate. For this submission, he relied on ADESANYA v OTUEWU (1993) 1 NWLR (Part 270) 414, WAKAMA v KALIO (1991) 8 NWLR (Part 207) 123. It was counsel’s further submission that section 4(2) of the Administration of Estate Law Cap 3 Laws of Lagos State is inapplicable since, according to him, the provision applies only to conveyances of legal title. With respect to the principle of priority of equities, counsel referred to the two transactions and submitted that since the agreement for sale of the property to the 2nd respondent was made in 1982 and the purported conveyance to the 3rd defendant/appellant was made in 1985, the equities of the 2nd respondent prevail. With respect to the second issue, learned counsel submitted that in a case of breach of contract for the sale of land, the appropriate order is that for specific performance and not the award of damages which cannot be an adequate remedy. He cited UNIVERSAL VULGANISING (NIG) LTD v IJECHA UNITED TRADING TRANSPORT CO. LTD (1992) 9 NWLR (Part 266) 388 and ANAEZE v ANUASO (1993) 5 NWLR (Part 291) 1. It was further submitted that where the 1st and 2nd respondents are proved to have been induced through exhibit ‘A’ “A” to alter their position by taking possession and expending money on the land, it would be fraudulent on the part of the 3rd respondent to set up invalidity of the contract as a defence. He relied on INTERNATIONAL ILE INDUSTRY (NIG) LTD v ADEREMI (1999) 8 NWLR (Part 614) 268 at 297-298 and ADUTUYI v AGBOJO (1997) 1 NWLR (Part 705) 718, BIYO v AKU (1996) 1 NWLR (Part 422) 1. Similarly, the 3rd respondent, having taken the benefits of the agreement in exhibit ‘A’ cannot turn round to say that the agreement is null and void, counsel further argued. Even if the agreement for the sale of the land were held to have been entered into single handedly by the 3rd respondent without the concurrence of the 4th respondent, counsel argued, it is only voidable at the instance of the 4th respondent and that the 4th respondent never took any step to void the contract in her life time. Finally it was urged on behalf of the 1st and 2nd respondents that the appeal be dismissed and the decision of the two courts below affirmed.

In the 5th and 6th respondents’ brief, Mr. Lawal Pedro, S.A.N. adopted the arguments of the 1st and 2nd respondents on the 1st issue. Counsel agreed that concurrence in section 4(2) of the Administration of Estate Law Cap 3 Laws of Lagos State means the concurrence of all the administrators or executors, but submitted that evidence of such concurrence can be direct or implied. For this submission, he relied on IBRAHIM v. OJOMO (2004) 1 SC (part 11) 136 at 155. On the 2nd issue for determination, counsel adopted the submissions of the 1st and 2nd respondents.

I have considered the evidence on record and the submissions of counsel for the parties. The facts of this case are essentially not in dispute. The 2nd plaintiff who is also 2nd respondent before us sometime in 1982 entered into an agreement with the 1st defendant who is 3rd respondent herein for the sale of the property in dispute at the agreed sum of N850,000.00. And pursuant thereto the 2nd respondent, as purchaser, paid to the 3rd respondent, as vendor, the sum of N481,000.00 representing the agreed part payment. In July 1985 the self same 3rd respondent in conjunction with her daughter, the 4th respondent who is also the co administratrix of the property conveyed the same property to the 3rd defendant who is the appellant. The question is the legal incidence of these transactions.

The answer to this question is, in my consideration, not too far to seek. The established legal principle is that where there is an agreement for sale of land either under native law and custom or any other mode of sale and for which the purchaser, acting within the terms of the agreement, makes full or part payment of the purchase price to the vendor and is in furtherance thereof put in possession, he has acquired an equitable interest in the property and which interest ranks as high as a legal estate and cannot therefore be overridden by a subsequent legal estate created by the same vendor or his legal representative in favour of another person. This principle was examined in considerable details and applied in AYINLA v SIJUWOLA (1984) N.S.C.C. 301 at 312 the Supreme Court per Nnamani JSC expanding the principle had this say:-

“if a party received title to land under native law and custom and entered into possession and the same vendor conveyed the land to another purchaser executing a deed of conveyance, a claim that the first party’s equitable interest was cut off by the latter bonafide purchaser would not be upheld. See AMAO V ADEBONA (1962) L.L.R 125. Further, if there is proof that money was paid for land coupled with an entry into possession, it is sufficient to defeat the title of a subsequent purchaser of the legal estate if the possession is continuously maintained. See T.A. ORASANMI V M. O. IDOWU (1959) 4 F.S.C 40. More close to the contention herein is the decision in SOREMEKUN v SHODIPO (1959) L.L.R. 30 to the effect that if land is sold to a party without executing a formal deed of conveyance, his interest was no more than equitable. Legal estate of the other party would be preferred to it if the party with the equitable interest is not in possession. All these cases appear to lay emphasis on possession. Even if it was an equitable interest, if it is coupled with possession it cannot be overridden by a legal estate. This principle accords with the decision of the privy council in OSHODI v BALOGUN & ORS 4 W.A.CA. 1 at p.6 and SULEIMAN & ORS v JOHNSON 13 W.A.C.A. 213. Whether land is sold under native law and custom or merely sold but without executing a formal deed, it seems to me that if the purchaser is in possession for a long time, the equitable interest thus created cannot be superseded by a subsequent legal estate. In effect it matures into a legal estate…. ”

The above is a clear restatement of the principle. See also REGISTERED TRUSTEES OF MUSLIM MISSION HOSPITAL COMMITTEE v. OLUWOLE ADEAGBO (1992) 2 N.W.L.R. (Part 226) 690 at 706. The emphasis is the payment of the agreed full or part of the purchase price coupled with possession by the purchaser. And I hold the view that possession in this con includes constructive possession. It is in evidence that the respondent would have been in physical possession but for the fact that the 3rd respondent/vendor was still there. See the evidence of the PW2 at page 91 lines 16-17 of the record. Ordinarily therefore the agreement for sale in exhibit ‘A’ being the one upon which the 2nd respondent paid the purchase price coupled with his constructive possession of the land, entitles him to an equitable interest strong enough to defeat any subsequent legal estate created in favour of the 3rd defendant/appellant. That however is not the end of the matter. The legal challenge here is that the agreement for sale is null and void and does not endure to create any equitable interest in favour of the 2nd respondent capable of defeating the subsequent legal estate of the 3rd defendant/appellant because it was made between the 2nd plaintiff/respondent and the 1st defendant/3rd respondent without the mandatory concurrence of the 2nd defendant/4th respondent who was a co-administratrix of the property and in contravention of the provisions of section 4(2) of the Administration of Estates Law Cap 3 Laws of Lagos State 1962. It is the submission of the appellant therefore that there existed no contract of sale of the disputed property let alone one that supersedes the subsequent legal estate of the appellant.

This is the crucial issue in this appeal and I have no doubt that there is a lot of force in the argument. But does it hold sway within the con of the provision and the facts and circumstances of this case Section 4(2) of the Administration of Estate Law Cap 3 Laws of Lagos State provides:

“Where as respects real estate there are two or more personal representatives, a conveyance of real estate devolving under this part of this law shall not, save as otherwise provided as respects trust estates, be made without the concurrence therein of all such representatives or an order of court, but where probate is granted to one or some of two or more persons named as executors, whether or not power is reserved to the other or others to prove my conveyance of the real estate may be made by the proving executor or executors for the time being, without an order of court, and shall be effectual as if all the persons named as executors had concurred therein. ”

Learned counsel for the appellant argued that by reason of this provision, the agreement not having been also signed and/or made by the second administratrix is null and void. I am not, with respect, persuaded by this submission. At this risk of repetition, the provision states simply that where as respects real estate there are two or more personal representatives a conveyance of real estate devolving under this part of this law shall not, be made without the concurrence therein of all such representatives. The ‘shall not be made without the concurrence therein of all such representatives’ should be accorded its clear literal construction. ‘Concur’ means ‘to agree’. And concurrence simply means agreement. In my view, therefore, the provision simply means that where there are two or more personal representatives a conveyance of real estate under this law shall not be made without the agreement of all such representatives. The word ‘concurrence’ in the con is not synonymous with the word ‘execution’. Thus, a conveyance can, under section 4(2) of the Administration Law Cap 3 Laws of Lagos State, be validly executed by one of two or more personal representatives provided it is so executed and signed with the concurrence or agreement of such other personal representatives.

In the present case therefore, the 1st defendant who is 3rd respondent, Mrs Cecilia Nkemdili Ibekwe being one of the executrixes of the estate of late Justice Daniel Ibekwe can, acting alone, validly execute an agreement for the sale of the subject property provided it is so done with the concurrence or consent of the second executrix Maureen Umeadi Ibekwe. And there is no evidence that the said Maureen Umeadi Ibekwe did not concur or agree. It is my firm view therefore that the appellant read the provision of section 4(2) of the Administration of Estates Law Cap 3 Laws of Lagos State out of con and whose argument is therefore untenable. On this issue, I am persuaded by the argument of learned counsel for the 5th and 6th respondents Lawal Pedro. IBRAHIM V OJOMO (supra) cited by him is, in my view, quite opposite to the facts and circumstances of this case.

The issue can still be examined from another perspective. The 3rd and 4th respondents are mother and daughter respectively. And they are the two administrixes of the property. The property has since the death Justice Daniel Ibekwe become family property. In these circumstances, can any sale of the family property by the 3rd respondent without the concurrence of the 4th respondent create an equitable interest in favour of the purchaser I shall answer this question in the affirmative. The 3rd respondent is the mother of the 4th respondent and a number of other children. In the absence of any decision to the contrary, she is presumed to be the head of the family. The established principle of customary law in Nigeria is that where the head of a family disposes family property without the consent of the other members of the family, it is still a valid sale, only voidable at the instance of those other members of the family. There are numerous authorities on the point amongst them FOLANI v COLE (1990) 2 NWLR (Part 133) 445 at 453, 455 and 457, ESAN v FARO 12 WACA 135; AJARHO v AGHOGHORVIA (1985) 4 SC 1; EKPENDU v ERIKA (1959) SC NLR 186; SOLOMON v MOGAJI (1982) 11 SC 1. Thus even if it is accepted that the 3rd respondent sold the property evidenced in exhibit ‘A’ without the consent or concurrence of the 4th respondent, it remains a valid sale voidable only at the instance of the said 4th respondent. I hold on conclusion therefore that exhibit ‘A’ remains a valid agreement of sale of the land in dispute and which has created an equitable interest in favour of the 2nd respondent and which equitable interest ranks as high as and can even supersede a subsequent legal estate created in favour of another person over the same land.

The next question is that of determining the priority of the equities as between the 2nd respondent and the appellant. The appellant claims to have acquired his legal estate over the property for value and without notice of the 2nd respondent’s equitable interest thereon. The settled principle is that only a subsequent bonafide purchaser of a legal estate for value without notice that can take priority over someone who had acquired a prior equitable interest over the same property. This is the principle in ANIMASHAUN v OLOJO (1990) 6 N.W.L.R. (Part 154) 111 at 121. There is no gainsaying the fact that the appellant bought the property for value. The evidence is that he paid N1,000,000.00 to the self same 3rd respondent. But can he be said to have bought the property bonafide and without notice In ANIMASHAUN v OLOJO (supra) purchase ‘Without Notice’ was explained to mean that the purchaser must have no notice of the existence of the equitable interest, that is, that he must have neither actual notice, nor constructive notice, nor imputed notice. It was also held that if the purchaser employs an agent such as a solicitor, any actual or constructive notice which the agent receives is imputed to the purchaser. In this case the uncontroverted evidence is that the same Chief Ladi Williams who brought the 2nd and 3rd respondent together and indeed facilitated the sale of the property to the 2nd respondent was also the agent of the appellant and facilitated the conveyance of the property by the 3rd and 4th respondents to the appellant. Therefore the notice actual or constructive of the prior equitable interest by Chief Ladi Williams is imputed to the appellant.

On this issue, the learned trial judge in his judgment at page 31 of the record had this to say.

“Inspite of the search conducted at the land registry at the instance of the 3rd defendant, no incumbrance was found, yet the knowledge of the earlier sale to the plaintiffs is impliedly imputed to the 3rd defendant through the role of Chief Rotimi Williams chambers. ”

I think I have every cause to endorse the above reasoning and conclusion.

The knowledge of Chief Ladi Williams and indeed Chief Rotimi Williams chambers about the prior sale to the 2nd plaintiff/respondent is, in law, imputed to the appellant. The result is that he cannot claim protection under the doctrine of innocent purchaser for value without notice. He had notice or notice imputed to him and so the defence does not avail him.

In view of the foregoing considerations therefore, I resolve the first issue in favour of the Respondent. With respect to the 2nd issue of whether the agreement for sale between the 3rd respondent and the plaintiff/respondent can found an action in specific performance, the answer, in my view is again in the affirmative. An action for specific performance arises once there exists a contract coupled with circumstances which make it equitable to grant a decree of same. This being a contract for the sale of land attracts a greater justification for a decree of specific performance because as opposed to other types of contract, the land may have a special and peculiar value to the purchaser. The plaintiffs/respondents have therefore every justification to claim for specific performance. With respect to the 3rd respondent, she must do equity for ‘equity looks on that as done which ought to be done’. Put in another way, equity imputes on her an intention to fulfil an obligation and the obligation is for her to specifically perform the result is that I also resolve the 2nd issue in favour of the respondents. On the whole, I do not fancy any reason to disturb the decision of the two courts below which I therefore affirm. This appeal stands dismissed and is accordingly dismissed for lack of merit. I assess the costs of this appeal at N150,000.00 in favour of the plaintiffs/respondents.

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SC.35/2004