Lamidi Ogbo Fakoya V St. Pauls Church, Shagamu (1966)

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BRETT, J.S.C. 

This is an appeal against the judgment of the Western Region High Court granting specific performance of a contract for the sale of land, and directing the original appellant, Lamidi Ogbo Fakoya, to execute a conveyance of the land to the respondents. A stay of execution was refused, and Lamidi Ogbo Fakoya executed the conveyance while the appeal was pending, but after doing this and before the appeal was heard he died, and his brother, David Adeyemi Fakoya, was substituted for him as appellant. References to the appellant in this judgment mean the original appellant.

It was not in dispute that the appellant and two of his sisters agreed in writing to sell the land to the respondents, as being the property of their family, the Fakoya family, and received payment for it. The two sisters executed the conveyance, but the appellant refused to do so, and asserted that since agreeing to sell the land he had discovered for the first time that the land did not belong to the Fakoya family but to the whole of the Ogunlana Ogunekun family, of which the Fakoya family forms a part. The appellant was a man of over fifty, and the head of the Fakoya family, and the judge found it unbelievable that he had not known who the owners of the land were.

His two sisters gave evidence for the respondents and continued to assert that the land belonged to the Fakoya family; the judge accepted their evidence, and although the appellant’s version of the ownership was supported by witnesses from the Ogunlana Ogunekun family it was inherently so improbable as regards the state of his own knowledge that we cannot possibly say that the judge was wrong in rejecting it in toto. We find it unnecessary to spend any more time over the facts of the case and if the matter rested there the appeal might be dismissed out of hand.

There is, however, one ground of appeal which cannot be disposed of so easily. The writ of summons stated that the plaintiffs claimed “specific performance of a deed of conveyance in compliance with an agreement in writing dated the 6th day of June, 1959,” and paragraphs I and 2 of the Statement of Claim read as follows:-

“1. By an agreement in writing (hereinafter called “contract”) dated the 6th day of June, 1959, and made between the representatives of the plaintiffs of the one part and the defendant and two others of the other part, the defendant and two others, on behalf of themselves and their descendants did sell a piece or parcel of land, measuring 800 feet by 1200 feet to the plaintiffs, at the price of £350 (Three hundred and fifty pounds).

2. A certified true copy of the contract is hereto annexed and marked Exhibit A.”

The material part of the agreement reads-

“We hereby bound ourselves to execute a deed of conveyance in favour of the purchaser (St. Paul’s Church, Shagamu) at any time it is ready.”

Paragraphs 3 and 4 of the Statement of Defence answered paragraphs 1 and 2 of the Statement of Claim as follows-

“3. Save that it is admitted that the defendant, along with the two others, agreed in writing to sell a piece or parcel of land to the plaintifffor the price of £300, all the other allegations contained in paragraph 1 of the Statement of Claim are denied.

4. Save that it is admitted that “the contract” mentioned in paragraph 2 of the Statement of Claim was thumb-printed by the defendant, the defendant avers that the letter writer who made the contract falsely told the defendant and the two other co-vendors that the purchase price was £300, and not £350, as alleged on the purchase receipt.”

Nothing now turns on the amount of the purchase price, and the appellant had therefore admitted all the essential facts relied on by the respondents in support of their claim, so that although the plaintiffs opened at the trial it would appear that the burden of proof was on the defence. At all events, the agreement was produced without objection and specific performance of it was ordered.

It is now submitted for the first time that the respondents ought not to have been allowed to plead or prove the agreement, on the ground that it had not been registered under the Land Instruments Registration Law, and that section 16 of the Law provides that-

“No instrument shall be pleaded or given in evidence in any court as affecting any land unless the same shall have been registered in the proper office as specified in section 3.”

It would fall far short of ideal justice between man and man if, where no third party had been prejudiced by the omission, a party to a contract could evade his obligations merely be- cause the other party had not gone to a government office and registered the contract, but the courts have to administer the statute law as it stands and since the submission has been made the Court must consider its validity. Two questions arise: first, was the agreement an “instrument” for the purpose of the Law, and secondly, was it pleaded and produced “as affecting land.”

On the first point we uphold the appellant’s submission.

Chief Okenla, for the respondents, relied on Yaya v. Mogoga (1947)12 W.A.C.A. 132, where it was held that an agreement for sale was not registerable under the Land Registration Ordinance, of which the Land Instruments Registration Law is the regional counterpart, but an agreement for a lease had previously been held registerable in Elkali v. Fawaz (1940) 6 WA.C.A. 212, and the decision in Yaya v. Mogoga turned on the fact that an agreement for sale was expressly exempted from registration by the Land Registration (Agreements) Exemption No. 2 Regulations, 1944, in what now appears as regulation 5 of the regulations made under sections 32 and 34 of the Land Registration Act in volume 8 of the Laws of the Federation, 1958. The law in force in Western Nigeria is no longer the same as it was when Yaya v. Mogoga was decided. The definition of “instrument” for the purpose of the Land Instruments Registration Law, as amended by section 200 of the Property and Conveyancing Law, 1959, now reads, so far as it is material:

“ ‘instrument’ means a document affecting land in the Region whereby one party (hereinafter called the grantor) confers, transfers, limits, charges or extinguishes in favour of another party (hereinafter called the grantee) any right or title to or interest in land in the Region and includes-

(a)  an estate contract.”

Section 2 of the Property and Conveyancing Law defines an “estate contract” as

any contract by an estate owner or by a person entitled at the date of the contract to have a legal estate conveyed to him to convey or create a legal estate, including a contract conferring either expressly or by implication of law a valid option to purchase, a right of pre-emption or any other like right.”

Section 201 of the Property and Conveyancing Law amended the regulations, and removed the exemption from registration formerly conferred by regulation 5, so that an agreement for sale is now registerable as an estate contract. For these reasons it is clear that the agreement, Exhibit A, was an instrument for the purposes of the Land Instruments Registration Law, and registerable under the law.

The question, whether a document pleaded and produced in support of a claim for specific performance of a contract for the sale of land is pleaded and produced “as affecting land” was not considered in Elkali v. Fawaz or Yaya v. Mogoga and these cases are no authority on the point.

We are of the view that in the present case the purpose of producing the agreement was not to show that the respondents had an equitable interest in the land, but to show that they had contractual rights of a kind which the court will enforce by specific performance. In principle, the basis of the remedy of specific performance is not the conversion of an equitable interest into a legal interest, but the enforcement of a contract where damages would not afford a complete remedy, and although specific performance is more frequently granted where the contract is for the sale of land than in other cases, this is not because of any distinction between the jural nature of a right to purchase land and other contractual rights but because damages are less often a complete remedy for the breach of a contract for the sale of land than for the breach of other contracts.

This view is reinforced by various English decisions in actions for specific performance of a contract which, if it is regarded as a contract affecting land, is void under the rule against perpetuities. The decisions are reviewed by Jenkins, J., in Hutton v. Walling [1948] Ch. 26, and he comes to the conclusion that they provide clear authority

“that an option to purchase land without limit as regards time is specifically enforceable as a matter of personal contract against the original grantor of the option, and that the rule against perpetuities has no relevance to such a case, as distinct from a case in which such an option is sought to be enforced against some successor in title of the original grantor, not by virtue of any contractual obligation on the part of the successor in title, but by virtue of the equitable interest in the land conferred on the grantee by the option agreement.”

He quotes Farwell, L. J., as saying in South Eastern Railway Co. v. Associated Portland Cement Manufacturers [ 1910] 1 Ch.

“But the fact that there is some connexion with or reference to land does not make a personal contract by A. any less a personal contract binding on him, with all the remedies arising thereout, unless the court can by construction turn it from a personal contract into a limitation of land, and a limitation of land only.

As regards the original covenantor it may be both; he may have attempted both to limit the estate, which may be bad for perpetuity, and he may have entered into a personal covenant which is binding on him because the rule against perpetuities has no application to such a covenant.”

Jenkins, J., goes on to refer to the fact that the learned authors of certain well-known text-books current in 1948 had expressed doubts as to the correctness of the exposition of law in the Portland Cement case and to say-

“These doubts appear to me to be ill-founded, as I understand the jurisdiction to grant specific performance of a contract for the sale of land to be founded not on the equitable interest in the land which the contract is regarded as conferring upon the purchaser, but on the simple ground that damages will not afford an adequate remedy; in other words, specific performance is merely an equitable mode of enforcing a personal obligation with which the rule against perpetuities has nothing to do.”

So far as our researches have extended, the authors of textbooks no longer express doubts of the correctness of this exposition, and in our view the reasoning which led to these English decisions is exactly applicable to the present question. An appeal was brought against the judgment of Jenkins, J., in Hutton v. Watling, but the report at [1948] Ch. 398 shows that the appellants did not challenge his decision on the point now under consideration. Mr Awopeju tried to distinguish the English decisions on the ground that they were concerned with the enforceability of a contract contained in a document which was admissible in evidence, whereas in the present case Exhibit A was inadmissible, but that argument begs the question, since the point at issue is whether Exhibit A was rightly admitted or not. In our opinion it was admissible for the purpose for which it was produced, that is to say for the enforcement of a personal obligation which it imposed on the appellant, and we reject the submission that it was produced “as affecting land.”

We would add that our decision in no way erodes the safeguards which the registration of instruments is intended to provide.

The personal obligations created by a contract for the sale of land are already known to the parties to the contract and neither party can maintain against the other party that he was taken by surprise because the contract was not registered. Third parties may on occasion enter into unprofitable negotiations, but the register of instruments affecting land does not purport to record the personal obligations of those who have interests in land, and the purchaser for value and without notice will have no less protection in consequence of our decision in this case than he had before.

The appeal is dismissed, with costs which we assess at 30 guineas.

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Other Citation: (1966) LCN/1338(SC)