M.T.A. Liman V. Alhaji Shehu Mohammed (1999)

LAWGLOBAL HUB Lead Judgment Report

E. OGUNDARE, J.S.C 

This appeal raises once again the propriety of a court granting to a party a relief that party has not claimed nor applied for. The Plaintiff, who is an appellant before us, had sued the Defendant (now respondent) claiming, as per paragraph 10 of his amended statement of claim:

“(i) A declaration that he has title over plot No.358, Sani Mai Nagge covered by Certificate of Occupancy No. LKN/RES/82/2281.

(ii) A declaration that the defendant is a trespasser over the land and therefore has no right to continue occupying the land or build, construct or erect any structure over the land.

(iii) A declaration that the defendant has no right to claim anything from the plaintiff in respect of the building the defendant started over the land.

(iv) Damages limited to the sum of N50,000.00 for trespass.”

The Defendant resisted the claim and in his statement of Defence, set up a counterclaim whereby he claimed as per paragraphs 18 and 19:

“18. The Defendant avers claiming from the plaintiff all sums of money spent on the development of the said plot No.558 Sani Mai Nagge as follows:-

(a) N7.000.00 as per receipt dated 3/3/81

(b) N6.000.00 being money spent on purchase of sand for levelling to shape the said plot No.358.

(c) N20.000.00 being sum expended on the development of the said plot No.358 to its present stand and stage.

Total N33,000.00

19. AND the Defendant claims from the plaintiff the total sum of N33,000.00 ”

Evidence was led on both sides at the trial and after addresses by learned counsel for the parties, the learned trial Judge found against the Plaintiff and in favour of the Defendant. He adjudged in favour of the latter as follows:

“A specific performance is hereby decreed against the plaintiff to execute a proper deed of Conveyance in favour of the defendant:’

The Plaintiff being unhappy with the judgment of the trial Court appealed to the Court of Appeal (Kaduna Division). One of the issues raised in the appeal was

“Whether, having regard to the state of the pleadings as well as the evidence adduced in this case, the respondent is entitled to have made in his favour. a decree of specific performance.”

The appeal was dismissed. Uthman Mohammed.JCA., (as he then was), delivering the lead judgment of the court concluded thus:

“I therefore agree that the learned trial Judge had exercised his discretion judiciously in decreeing for specific performance instead of awarding damages against the appellant since there is overwhelming evidence that the appellant had sold plot 358 to the respondent for N7,000.00. The respondent had expended money, which the appellant himself admitted, in erecting structures on the land. It will be unjust to disturb an order made by the trial judge of specific performance,”

The Plaintiff was still dissatisfied and has now further appealed to this Court upon two grounds of appeal which read:

“1. The Court of Appeal erred in law when it held that the learned trial Judge had exercised his discretion judiciously in decreeing for specific performance instead of awarding damages against the appellants as claimed by the Respondent.

PARTICULARS

i. A party is entitled to the claim made by it before the court and no more.

ii. The court does not make it a practice of awarding to a party what it did not claim.

iii. The Respondents’ claim against the Appellant was clear and specific and did not leave room for the exercise of any discretionary powers by the trial Judge.

2. The Court of Appeal erred in law when it held that the Order of specific performance is not inconsistent with the Respondent’s claim for damages.

PARTICULARS

i. The order for specific performance implies that the Respondent cannot have a damage which is what he claimed.

ii. No where did the Respondent make a claim for specific performance of the contract.

iii. Damages is a distinct remedy in contrast with specific performance.”

And in his brief of argument he raises the following three questions as calling for determination in this appeal. to wit:

1. Whether the Court of Appeal was right in holding that the Order of specific performance is a judicious exercise of the trial Judge’s discretionary powers.

ii. Whether the order for specific performance is consistent with the claim for damages.

iii. Whether the order for specific performance is a consequential order.”

The Defendant in his own brief, adopts these questions.

Before proceeding with this judgment let me state the facts, how-be-it briefly. The plaintiff a former senior lecturer at the Bayero University, Kano applied for and was allocated Plot 358 Sani Mai Nagge Layout by the Kano State Commissioner of Land and Survey – see Exhibit W dated 21st March 1978. Sometime in 1979, because he needed money, plaintiff decided to sell the land and did sell it to the defendant, through intermediaries, for the sum of N7,000,00 (seven thousand Naira). Defendant paid the said purchase price and went into possession and commenced development of the land. Sometime in 1981, plaintiff handed over to the defendant his letter of allocation of the plot (Exhibit W) and a receipt for the purchase price (Exhibits D & W1). The defendant, with Exhibit W, collected from the Ministry of Land and Survey the Certificate of Occupancy issued in Plaintiff’s name and dated 2nd June 1981 (Exhibit C).

There was a riot in Kano in 1981 resulting in the building of the Ministry of Lands and Survey being torched and documents burnt. The Ministry subsequently called on members of the public who had certificates of occupancy, etc. yet to collect to come forward for re-certification of their documents. The plaintiff took advantage or this situation and, on the pretence that the Certificate of occupancy in respect of Plot 358 had not been issued, applied for a re-certification and another certificate of Occupancy (Exhibit B) dated 28th April 1983 was issued to him.

Armed with Exhibit B he now went to the land in dispute (Plot 358) where he found the defendant developing it. Plaintiff made a report to the Police who questioned the defendant. The defendant informed the police that it was the plaintiff who sold the land to him. The plaintiff’s reply to this was that it was Plot 368 he sold to the defendant and not plot 358. The police made enquiry at the Ministry of Land and Survey where they were told the Plot 368 was never allocated to the Plaintiff but only Plot 358. On the strength of this information the police dropped further action on plaintiff’s complaint. The plaintiff then instituted the action leading to this appeal and claimed as is hereinbefore stated.

The learned trial Judge made a number of findings of fact which are not questioned in this appeal. The findings include:

1. That there was a sale agreement between the plaintiff and the defendant in respect of the land in dispute.
2. That the defendant paid the contract sum of N7,000.00 and the plaintiff received same and issued Exh. D. a receipt for the said sum; Exh. D was written in hausa language.
3. That in consequence thereof plaintiff handed over to the defendant Exhibit W, the letter of allocation of the land to the plaintiff by which the defendant obtained from the Ministry of Land and Survey. Kano State, Exhibit C, the Certificate of Occupancy in respect of the land issued in the name of the plaintiff.
4. That the defendant has an equitable interest in the land.
5. That it was wrong of the plaintiff to have taken advantage of the 1981 rampage in Kano to go back to the Ministry of Land and Survey and collect from the Ministry a re-certification of Exhibit C.
6. That the conduct of the plaintiff in obtaining a re-certification of Exhibit C from the Ministry, without disclosing to the Ministry that he had sold the plot concerned to the defendant was fraudulent; the learned Judge said’

“It was a fraud on the Ministry of Land and Survey as well as on the defendant for the plaintiff to obtain a recertification of the Certificate of Occupancy on the grounds that the former one (i.e. Exhibit C) had been burnt during the rampage when in fact there was no certificate of Occupancy which was so burnt.’

Not having been impugned in this appeal, these findings of fact are taken as correct. And it is upon these findings that the learned trial Judge dismissed plaintiff’s claims and the Court of Appeal affirmed the dismissal.

In decreeing specific performance the learned trial Judge had observed:

‘The plaintiff in this case is not only in a position to convey substantially what the defendant had contracted to get but the substance of the whole transaction has made it imperative for the Court to call upon the plaintiff to complete his own side of the contract. I therefore, accept in its totality the evidence of the defendant and all his witnesses. The evidence of the plaintiff was based purely on a concocted story and it is hereby rejected.”

The Court below, in the lead judgment of Mohammed J.C.A. (as he then was) observed:

“Under our Civil Procedure Rules unless it is provided that a Court can give any general but especially equitable relief to which the plaintiff may be entitled whether he has asked for it or not provided that it is not inconsistent with the reliefs claimed. See Fabunmi v. Agbe (1985) 1 NWLR (pt.2) 299 at 321 to 322. See also Aguda’s Practice and Procedure of Supreme Court, Court of Appeal and High Courts in Nigeria al page 247 para. 1909 – 19,11 and also the case of Garba v. University of Maiduguri (1986) 1 NWLR (Pt. 18) 550.”

It then opined:

“A Court has jurisdiction to grant any relief that it thinks appropriate to the facts of the case as proved, but if a party seeks to raise a new claim which he has not adumbrated in his pleading, in the course of the trial, the court should not give relief of that kind without first offering the opposite party, if taken by surprise, the opportunity to an adjournment – see Helmont Finance Corporation Ltd. v. Williams Furniture Ltd. (1979) 1 All ELR, 118.”

and decided as earlier quoted in this judgment. It is the grant of the order for specific performance that is being questioned in the appeal to this Court. Perhaps I may at this stage state the scope of the rules of Court the court below presumably had in mind. Order 9 rule 7 of the Kano State High Court (Civil Procedure) Rules which provides:

“Every statement of claim shall state specifically the relief which the Plaintiff claims, either simply or in the alternative and it shall not be necessary to ask for general or other reliefs which may always be given as the Court or Judge in Chambers may think just to the same extent as if it had been asked for. And the same rule shall apply to any counterclaim made, or relief claimed by the defendant in his defence:”

does not permit a court to grant that which is not specifically claimed but only to make consequential orders to give effect to the adjudication.

It is submitted by learned counsel for the plaintiff that the claim of the defendant in his counter-claim is specific, that is, for damages and not in the alternative. It is conceded that the defendant could have claimed for specific performance and damages, in the alternative. But he did not do so, argues learned counsel. It is further argued that since the claim was specific. it did not leave the trial court with any discretionary powers in the circumstance. It is submitted that the court is bound to adjudicate between the parties on the basis of the case formulated by the parties themselves and that as parties are bound by their pleadings anything not contained in the pleadings of the parties must be ignored. After quoting from African Continental Seaways Ltd. v. Nigerian Dredging Roads and General Works Ltd. (1977) 5 SC. 235 at 249-250, learned counsel observes that the issue of specific performance of the contract of sale of land in dispute was not raised by the defendant at the trial and submitted that it was wrong to award to the defendant what he did not claim. He cited in support Ekpenyong v. Nyong (1975) 2 SC. 71 at 80-81 and Order 9 rule 7 of the High Court (Civil Procedure) Rules 1978 of Kano State. It is submitted that the court cannot, in the exercise of its powers give general or other reliefs, whether asked for or not, substitute a claim for one that has been specifically made by a party to the suit in its pleadings. Learned counsel cites Fabunmi v Agbe (1985) 1 NWLR (Pt.20 299; (1985) 3 SC.28 at 83-84 per Obaseki JSC and Hon. Justice Adenekan Ademola v. Chief Harold Sodipo & Ors. (1992) 7 NWLR (Pt.253) 251; (1992) 7 SCNJ (Part 11) 417 at 446 – 447, per Ogundare JSC.

On issue (2), it is submitted that the order for specific performance is inconsistent with the Respondent’s claim for damages as the latter claim presupposes that the defendant is abandoning the contract but will like to reclaim all the things he lost as a result of his entering into the contract obligation. It is further submitted that the claim for damages is an antithesis of the order for specific performance and that one cannot serve as a supplement to the other in the circumstance of this case. On what is a ‘consequential order’, counsel cites Obayaghona v. Obazee & Anor. (1972) 5 SC.247 at 254, and 258, per Sowemimo JSC (as he then was) and Mrs.Hassey Ltd Okon v. Administrator General (Cross-River State) & Anor. (1992) 6 NWLR 473 at 488-489 CA, per Akintan J.C.A.

Learned counsel for the defendant argues to the contrary. While conceding that a party is bound by its pleadings, learned counsel argues, rather strangely, that the defendant led no evidence in support of his claim for damages and that claim ought then to have been dismissed, the order for specific performance would be a consequential order to such dismissal.

I must confess I find the arguments of learned counsel not helpful to the defendant’s case, nor answering, with respect. in any intelligible manner the forceful arguments raised in the Appellant’s brief. I think the less said about the presentation of defendant’s case in this Court, the better. Suffice it to say, however, that there was evidence adduced by the defence tending, not only to the disproof of plaintiff’s case but also in proof of defendant’s counter-claim. I shall say more on this in this judgment.

Coming now to the appeal he fore us, it is not plaintiff’s case, as I understand it. that specific performance could not have been ordered given the facts of this case but that as that relief was not specifically claimed by the defendant in his counter-claim, it was not open to the trial court to make the order and the Court below to affirm it.

It is trite law that a court will not give to a party a relief that is not claimed; – see Ekpenyong v. Nyong (supra); Fabunmi v. Agbe (supra); Ademola v. Shodipo (supra). This much is admitted by defendant’s counsel and recognised by the two Courts below. The Court below also recognized that the issue of specific performance was not pleaded by the defendant. That Court, however, justified its affirmation or the order for specific performance made by the trial court when it said, per Uthman Mohammed JCA. (as he then was):

“Now it is pertinent to look into all the aspects involved in this case and consider whether the relief for specific performance is inconsistent with the relief of damages which the respondent pleaded in his counter-claim. Being an equitable remedy the relief for specific performance flows from the consequential orders a trial or Appeal Court may make at the conclusion or a decision of a breach of contract. In any action for breach of contract to deliver specific or ascertained goods a trial court may direct that the contract shall be performed specifically, without giving the defendant the option of retaining the goods on payment of damages, or upon such other terms and conditions as the court may seem just. Equally if the court is satisfied that a party is in breach of a contract over a sale of land it will direct for conveyance to the purchaser through a decree of specific performance. It is imperative for the trial Judge to exercise his discretion in order to avoid a multiplicity of proceedings and make a judgment effective so far as that could be done without causing injustice to the other side – See Ajoke v. Amusa Yesufu & Anor. (1962) 1 All NLR 73.”

The question that arises is: is the order for specific performance a consequential order flowing from the claim for damages for plaintiff’s breach of the contract I rather think not.

Where there is a breach of contract for the sale of land (as in this case) the aggrieved party has an option to regard the contract as still subsisting and sue for specific performance of the Contract or for an injunction where the obligation is a negative one, or he may regard the contract at an end, and sue for damages for the breach of it. As Lord Justice Fry put it in his work on Specific Performance (see 6th edition p.21):

“If a contract be made and one party to it make default in performance, there appears to result to the other party a right at his election either to insist on the actual performance of the contract, or to obtain satisfaction for the non-performance of it.”

He has a third option which is to sue for specific performance or for damages in the alternative but not for both at the same time. See: Anaeze v. Anyaso (1993) 5 NWLR 1 where Wali JSC at page 26 observed:

“Where there is a valid enforceable contract and one of the parties thereto defaults in performance, as in this case, the other party has two options:

(a) insist on the actual performance of the contract or

(b) seek damages for breach.”

Karibi-Whyte, JSC at page 39 of the report reiterated this view where he said:

“The principle is and has always been that where there is a valid enforceable contract between parties relating to transactions in respect of land, and one of the parties defaults in performance of his part the other contracting party who has performed his part; has the option either to seek the enforcement of the performance of the contract, or to claim for damages for its breach.”

It follows that there are two remedies open to an aggrieved party in a contract for sale of land which is breached by the other party. These are: order for specific performance or damages for trespass. Each is a specific relief that must be specifically claimed. Both may, however, be claimed in the same action but in the alternative and not conjunctively. I do not think the issue here calls for an exposition of the law on the statutory power of the court to award damages in addition to or in lieu of specific performance or injunction. This jurisdiction has its origin in Section 2 of the Chancery Procedure Amendment Act 1858, generally known as Lord Caim’s Act, which provides:

“In all cases in which the Court of Chancery has jurisdiction to entertain an application for an injunction against a breach of any covenant, contract, or agreement, or against the commission or continuance of any wrongful act, or for the specific, performance of any covenant contract, or agreement, it shall be lawful for the same Court, if it shall think fit, to award damages to the party injured, either in addition to or in substitution for such injunction or specific performance, and such damages may be assumed in such manner as the Court shall direct.”

Although the Act has been repealed the jurisdiction to award damages survives and is now governed by Section 18 of the Judicature (Consolidation) Act 1925. And being a jurisdiction vested in or exercisable by Her Majesty’s High Court of Justice in England the same is vested in or exercisable by the Judges of the High Court of H Kano Slate by virtue of Section 13(1) of the High Court Law Cap. 49 Laws of Northern Nigeria 1963 applicable in that State. Lord Cairn’s Act only allowed for damages to be awarded in lieu of specific performance and not vice versa, as is the case in this appeal.

Being a specific relief, will it be right to say that an order for specific performance can be a consequential order flowing from a claim for damages

What is a consequential order is defined by Nnaemeka-Agu JSC in Akinbobola v. Plisson Fisko Nigeria Ltd. & Ors (1991) 1 NWLR 270. 288 where he said:

“A consequential order is not one merely incidental to a decision b9ut one necessarily flowing directly and naturally from, and inevitably consequent upon, it. It must be giving effect to the judgment already given, not by granting a fresh and unclaimed or unproven relief.”

See also: Obayagbona v. Obazee (supra) where Sowemimo JSC, as he then was, observed:

“We think that by the very nature of the term ‘consequential’ any ‘consequential orders’ must be one giving effect to the judgment In its ordinary dictionary meaning, the word ‘consequential’ means ‘Following as a result, of inference; following or resulting indirectly’. See the Concise Oxford Dictionary. 5th Edition, Page 258. The word has never been regarded as a term of art. All the ‘consequential orders’ made by the learned trial Judge were not part of the claims before him and they do not necessarily follow as a result thereof or constitute an inference. A consequential order therefore, made subsequent to a judgment which detracts from the judgment or contains extraneous matters is not an order made within jurisdiction.”

A consequential order can only relate to matters adjudicated upon.

The defendant’s counter-claim is one for damages for breach of contract. His evidence to the effect –

“I am asking the Court to give me my plot which I purchased; this is plot 358.”

Does not amount to a specific claim for specific performance without any amendment of paragraph 19 of the statement of defence and counter-claim. His claim for damages was not considered, let alone decided upon, by the learned trial Judge. The order for specific performance cannot, in such a circumstance, be a consequential order. It flowed from nothing decided. Nor could it be given in lieu of damages. The two courts below are in my respectful view, in error to award to the defendant the order for specific performance which was never asked for by the defendant. The order must be set aside.

With this conclusion, I need to consider what consequential order I now have to make. Defendant counter-claimed for, and led evidence in support of the claim for damages for breach of contract. The learned trial Judge and the Court of Appeal did not consider his case at all but went on a voyage of their own to consider a case not put before them. I do not think it will be just and fair to merely allow this appeal, set aside the judgments of the Courts below in so far as the counter-claim is concerned and dismiss same. That will be depriving the defendant of the opportunity to have a decision given on his claim. Consequently, I think the cause or justice requires that the counter-claim be remitted to the High Court of Kano State for it to be heard and determined by a Judge of that Court other than Saka Yusuf, J.

This appeal succeeds and it is allowed by me. The judgments of both the Court below and the Court of trial, in so far as they relate to the defendant’s counter-claim, are hereby set aside. The Plaintiff’s claims however, stand dismissed. An order of retrial of the Defendant’s counter-claim is hereby made. Each party is at liberty to amend his pleadings in relation to the counter-claim. In view of the age of this case I further order that the retrial be given expeditious hearing.

In view of the dismissal of Plaintiffs claims I affirm the orders for costs made by the two Courts below. The Costs of this appeal assessed at N10,000.00 are awarded in favour of the Plaintiff against the Defendant.

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SC.162/1992