Madam Asimowu Odusoga & Anor V.l.l. Ricketts (1997)

LAWGLOBAL HUB Lead Judgment Report

E. OGUNDARE, J.S.C

The appellants are defendants in an action instituted by L.L. Ricketts now deceased. Ricketts claimed:

(i) a declaration that the plaintiff is the beneficial owner of the property situate lying and being at Thomas Drive and forming part of a larger area of land covered by a deed of conveyance registered as No.9 at page 9 in volume 1547 of the Lands Registry, Lagos and that the plaintiff is entitled to a certificate of occupancy of the same property (hereinafter called ‘the land in dispute);

(ii) N1,000.00 damages for trespass committed by the defendants, servants and agents on the said piece or parcel of land on or about the 29th day of April, 1980.

(iii) Perpetual injunction restraining the defendants, servants and/or agents from further acts of trespass on the land in dispute.”

The land in dispute is a portion of the land (4 plots) sold by the administrators of the estate of Babatunde Jemi-Alade deceased in 1965 to the plaintiff. Mr. Ricketts paid part of the purchase price to the vendors but failed to pay the balance. He went into possession and surveyed the land, (the entire 4 plots). He however developed only a part of it leaving the part now in dispute undeveloped. He built on the portion of the land developed by him but left the undeveloped part vacant. He bought the 4 plots of and for 950.00pounds (nine hundred and fifty pounds) but made a part payment of 700.00 (seven hundred pounds) for which he was given a receipt. This was in 1965. He did not pay the balance of the purchase price despite repeated demands from the vendors.

In 1971 one Mr. S.O. Adenuga went on the land in dispute. He was challenged by the plaintiff, Mr. Ricketts. Mr. Adenuga disclosed to Mr. Ricketts that he was supervising the building on the land on behalf of Madam Asimowu Odusoga the 1st defendant/appellant. The plaintiff sued Mr. Adenuga and Mrs. Ebun Bucknor the sole surviving administratrix of Jemi-Alade in suit No. LD/414/72 for damages for trespass. It was disclosed in the course of proceedings that Mrs. Ebun Bucknor had sold the land in dispute to the 1st defendant/appellant in the present proceedings following the failure of the plaintiff to pay the balance of the purchase price of the 4 plots of land sold to him in 1965. The plaintiff was non-suited in the action. Thereafter, he instituted the proceedings leading to this appeal against the above-named appellants claiming as herein-before mentioned.

Pleadings having been ordered, filed and exchanged the action proceeded to trial. At the conclusion of trial and after addresses by learned counsel for the parties, the learned trial judge (Hotonu J.) in a reserved judgment, found that the plaintiff was in possession of the land in dispute at the time that the defendants came on it to build. He also found that although the plaintiff paid a part of the purchase price in 1965 he did not pay the balance of the purchase price of the land sold to him, until 1976. He found also that the land in dispute was conveyed to the 1st defendant in April 1972 by Mrs. Ebun Bucknor the sole administratrix of the estate of Jemi-Alade family. The learned trial judge also found that the deed of conveyance executed in favour of the plaintiff in 1976 by Mrs. Ebun Bucknor after the plaintiff paid the balance of the purchase price was ineffective to pass the title to the land in dispute to the plaintiff in that by the earlier conveyance in 1972 in favour of the 1st defendant the estate of Jemi-Alade had divested itself of any title to the land in dispute that could be passed to the plaintiff. He finally found that the 1st defendant had better title to the land in dispute and consequently dismissed the plaintiff’s claims in toto.

Being dissatisfied, the plaintiff (Mr. Ricketts) appealed successfully to the Court of Appeal. That Court (Lagos Division) found as follows:

“(i) In law exhibit A is transaction of sale of the 4 plots from Jemi-Alade estate of which the document is a receipt that money had passed. The appellant was put into possession. It follows that under customary law the legal personal representatives of Jemi-Alade estate have transferred ownership to the appellant.”

(ii) “The execution of the deed of conveyance later in 1976 exhibit is a confirmation of the sale that has validly taken place under customary law as far back as 1965. It is up to administrator and administratrix of Jemi-Alade estate to sue for the balance of their money before exhibit B was executed.”

(iii) “Since they have sold in 1965 they have no more interest in the 4 plots or in the remaining two plots of land which is the subject matter of the dispute in this case. Their right was only to recover the balance of 250pounds.

The learned judge used delay and negligence to defeat the appellant’s title. Let me say right away that delay and ‘negligence do not come into play here because the sale of the land had already been effected and what is open to the appellant was to demand a deed of conveyance after he had paid the balance.”

(iv) “Such being the law as I understand it Exhibit G cannot validly convey anything to the respondent as it was not even given by persons entitled in law to execute an instrument that can pass title from Jemi-Alade’s estate.

(v) “The finding for possession in favour of the appellant is quite in order. It matters very little whether the survey pillars were hidden in the bush that had grown over the land in dispute. What matters is the fact that the appellant’s pillars were there at the time the respondent’s surveyor surveyed the land for the respondent.”

On these findings the Court below allowed the plaintiff’s appeal, set aside the judgment of the trial High Court and entered judgment in favour of the plaintiff on the three reliefs sought by him.

The defendants were, quite naturally, unhappy with this judgment and have now appealed to this court upon 10 grounds of appeal. The appellants in their brief formulated 10 questions for determination based undoubtedly on their 10 grounds of appeal. The plaintiff/respondent in his brief formulated 5 questions. Having regard to the judgment appealed against and the grounds of appeal, I am of the view that the main issue calling for determination in this appeal is as to whether the plaintiff acquired title to the 4 plots of land sold to him in 1965 by the administrator and administratrix of the estate of Jemi-Alade deceased the previous owner of the land in dispute notwithstanding that the plaintiff did not at the time pay the full purchase price to his vendors. If the answer to this question is in the affirmative as decided by the Court below that would be the end of this appeal. If, however, the answer to this question is in the negative as decided by the learned trial judge then the judgment of the learned trial judge must be restored. There is a subsidiary issue and that is: whether Exhibit G, the deed of conveyance in favour of the 1st defendant/appellant is valid.

The plaintiff died before this appeal came up for oral hearing. On the application of the appellants, Chief Solesi for the respondent not opposing, Akinola Ricketts, Mrs. R. A. Ricketts, Mrs. Omolara Ajele and Segun Ricketts who are the administrators of the estate of the plaintiff – L.L. Ricketts were, by order of this court made on 8/4/97, substituted for the plaintiff as respondents to this appeal.

The 1st appellant was absent but 2nd appellant was present at the hearing of this appeal. Their counsel was also absent. Learned counsel for the appellants wrote to the Court to the effect that he had diarrhoea in consequence of which he was unable to be present in Court. He asked for adjournment. We were of the view that the reason for the application was frivolous. This appeal was entered in this Court in 1990 and briefs of argument had been filed and exchanged by the parties since that year. Counsel for the appellants could have arranged for some other counsel to appear but did not. rather he sent a letter to the Court. Pursuant to the rules of Court. the appeal was taken as argued on the brief of the appellants already filed in court. Chief Solesi for the respondent in a short address relied on the respondent’s brief. He observed that Exhibit G was executed by three persons acting for themselves and on behalf of Babatunde Jemi-Alade family. He also observed that Exhibit B was executed by one person, the sole administratrix of the estate of Babatunde Jemi-Alade. He submitted that the vendors in Exhibit G had no power to convey a legal estate to the land in dispute and, therefore, Exhibit G was valueless. He urged the Court to dismiss the appeal.

I will begin the consideration of this appeal by disposing of the submission made by Chief Solesi on the validity of Exhibit G. I pause here to observe that Exhibit G is the deed of conveyance executed in favour of the 1st Defendant in 1972. Exhibit B on the other hand is the deed of conveyance executed in favour of the plaintiff in 1976. Exhibit G was executed by Mrs. Ebun Bucknor described in the deed as the sole surviving administratrix of the estate of Babatunde Jemi-Alade (deceased) and Modupe Afolabi Alade and Abiodun Olayinka Kuye (Nee Alade), both of 140 Clifford Street, Yaba, Lagos and both of whom acted for themselves and on behalf of all members of the Babatunde Jemi-Alade family. The three together were referred to in the deed as the vendors. It is the submission of Chief Solesi for the respondents that Modupe Afolabi Alade and Abiodun Olayinka Kuye not being administrator/administratrix of the estate of Jemi-Alade (deceased) could not join in conveying the legal estate in the land in dispute to the 1st defendant/appellant and that, therefore, Exhibit G is invalid.

Exhibit G, in part, reads:

“THIS INDENTURE is made the 4th day of April, 1972 BETWEEN EBUN OLAJUMOKE BUCKNOR of 20, Eleshin Street, Lagos the sole surviving administratrix of the Estate of BABATUNDE JEMI-ALADE, deceased MODUPE AFOLABI ALADE and ABIODUN OLA YINKA KUYE (Nee ALADE) both of 140, Clifford street, Yaba, on the Mainland of Lagos for themselves and on behalf of all members of the BABATUNDE JEMI-ALADE FAMILY (all together hereinafter called the vendors) of the one part and MADAM ASIMOWU ODUSOGA, Trader of 13 Solanke Street, Akoka, Yaba, Lagos State (hereinafter called the “Purchaser”) of the other part.”

The recitals, in part, also read:

“AND WHEREAS on the 28th day of October, 1961; Letters of Administration of his Estate were granted by the High Court of Lagos to the said EBUN OLAJUMOKE BUCKNOR and TUNJI ALADE late of 28, Moloney Street, Lagos.

AND WHEREAS under and by virtue of Suit No.M/38/1962, the power to deal with the realty of the said Estate was granted to the said EBUN OLAJUMOKE BUCKNOR and the said Tunji Alade by the High Court of Lagos on the 16th day of April, 1962. AND WHEREAS under and by virtue of a Deed of Conveyance dated the 21st day of August, 1964 and registered as No. 49 in Volume 774 of the Land Registry in the Office at Ibadan the personal representatives of the said Estate became seised of the said large parcel of land.

AND WHEREAS the said letters of Administration granted on the 28th day of October, 1961 to the personal representatives of the said Estate were resealed on the] 8th day of August, 1967 by the Probate Registrar of the Western State of Nigeria.

AND WHEREAS the said TUNJI ALADE, died intestate in Lagos on the 29th day of January, 1971.

AND WHEREAS the said TUNJI ALADE, deceased, and EBUN OLAJUMOKE BLCKNOR as Administrator and Administratrix respectively of the Estate of BABA TUNDE JEMIALADE deceased agreed with the Purchaser for a sale to her of the said hereditaments for the sum of ‘a3300 (Three Hundred Pounds) but no conveyance was executed .

AND WHEREAS the said MODUPE AFOLABI ALADE and ABIODUN OLAYINKA KUYE both being beneficiaries of the Estate of the said BABA TUNDE JEMI-ALADE, have been appointed by the other beneficiaries of the Estate as Accredited representatives of the said BABA TUNDE JEMI-ALADE FAMILY.”

The habendum states:

“NOW THIS CONVEYANCE WITNESSETH that in pursuance of the above premises and in consideration of the sum of ‘a3300 (Three Hundred Pounds) paid by the Purchaser to the Vendors before the execution of these present (the receipt whereof the Vendors hereby acknowledge) the said EBUN OLAJUMOKE BUCKNOR as personal representative and the said MODUPE AFOLABI ALADE and ABIODUN OLAYINKA KUYE as beneficial owners hereby convey UNTO the Purchaser…………”

In dealing with the issue of the validity of Exhibit G the learned trial judge said:

“The position is that by the deed of conveyance exhibit G the legal state in the land in dispute has been properly conveyed to the 1st defendant in April. 1972. It was the contention of the learned counsel for the plaintiff that since this document was executed by Mrs. Bucknor the surviving administratrix of the estate of Jemi-Alade along with other two people it was void. I do not support this view. Mrs. Bucknor as the only remaining administratrix of the estate had full right to sign the deed of conveyance. The mere fact that other two people. Modupe Afolabi Alade and Abiodun Olayinka Kuye, who are beneficiaries of the estate ……………… document does not make it void.”

But the Court below, per Ademola, JCA. observed:

“The next question is about the two deeds of conveyance. Are the exhibits B and G given by a common vendor or vendors as the case may be Here exhibit B was given to the appellant by Mrs. Bucknor who at the time she executed it was the only surviving administratrix of the Jemi-Alade estate, whereas exhibit G was given by vendors namely:-Mrs. Bucknor, Mr. Jemi-Alade and Mrs. Kuye who described themselves as selling on behalf of Jemi-Alade family land which has been vested in the Administrator and Administratrix of the estate of Jemi-Alade.

So it is quite patent and admit of no argument that the vendors to the 1st respondent are not the same as the vendor of the appellant. Therefore the instruments exhibits Band G are not from a common source, so even if one were to apply them to the appropriate section under the Land Instrument Registration Law as to priorities, one would still say that the finding of the trial judge that the interest of the appellant have been defeated by the earlier registration of the instrument of the respondent (exhibit) in this matter is erroneous.

To talk of competiting interest, there must be a common base first and thereafter loss of priority of interest can follow. I am of the view that Exhibit B and Exhibit G have no common base, therefore no question of priorities can arise between the two instruments.”

Ademola, J.C.A. went on, later in his judgment, to say:

“……Exhibit G cannot validly convey anything to the respondent as it was not even given by persons entitled in law to execute an instrument that can pass title from Jemi-Alade’s estate.

Exhibit G therefore has no place as a document of title in this case.”

With profound respect to their Lordships of the Court below, I think they were wrong in their view of Exhibit G. Mrs. Ebun Olajumoke Bucknor executed Exhibit G not as a beneficiary but in her capacity as the sale surviving administratrix of the estate of Babatunde Jemi-Alade, deceased. As the legal estate to the land in dispute was then in her, she could validly alone execute the deed of conveyance in favour of the 1st defendant/appellant. The fact that two beneficiaries of the estate joined in executing Exhibit G would not make the deed void or ineffective to pass title to the 1st defendant. Their executing the deed was superfluous and unnecessary.

Since they had no title to the land, there was nothing they could pass to the purchaser. Had Mrs. Bucknor executed the deed in any capacity other than as administratrix of the estate of Jemi-Alade, such as the capacity in which the other two joined, a different situation would have arisen and I would not then have hesitated in agreeing with the Court below that Exhibit G was valueless. Title to the land was, by virtue of the deed of conveyance dated the 21st day of August, 1964 and recited in Exhibits B and G, vested, not in the beneficiaries but in the personal representatives of the deceased Jemi-Alade and only they or the sole survivor of them could pass title to a third party.

As Mrs. Ebun Bucknor executed Exhibit Gin her capacity as the administratrix of the estate I hold that Exhibit G was validly made and was from common source as Exhibit B. Being prior in time to Exhibit B, Exhibit G took priority over Exhibit B, as, rightly in my view, was decided by the learned trial judge. This conclusion disposes of the subsidiary question arising for determination in this appeal.

I now turn to the main question arising for determination in this appeal. The learned trial judge was of the view that as the plaintiff failed to pay the full purchase price of the land sold to him, he would not be entitled to a decree of specific performance against his vendors even though he was in possession of the land he bought in 1965. The Court of Appeal was of a contrary view. In his lead judgment, with which the other Justices agreed, Ademola J.C.A. observed:

“Since they (id est, the vendors) have sold in 1965 they have no more interest in the 4 plots or in the remaining two plots of land which is the subject matter of the dispute in this case. Their right was only to recover the balance of ‘a3250.00 the sale of the land had already been effected and what is open to the appellant (id est, the plaintiff) was to demand a deed of conveyance after he had paid the balance.” (brackets are supplied by me)

What, in effect, their Lordships of the Court below seem to be saying is that once there is an agreement under customary law to sell land and the purchaser has paid part of the purchase price, he, has acquired title to the land and is entitled to have legal title conveyed to him on his paying the balance of the purchase price, notwithstanding that he may have defaulted in paying this balance, within the time agreed to by the parties or, in the absence of agreement, within a reasonable time. The vendor, according to their Lordships, has lost his title to the land and cannot refuse to convey to the purchaser; his only interest is in the balance of the purchase price which he can recover in an action.

With profound respect to their Lordships of the Court below they are clearly in serious error. For a sale under customary law, such as the sale to the plaintiff in 1965, this Court has in A.O. Odufuye v. Jacob Adeoye Fatoke (1977) 4 SC. 11, accepted the proposition of law that where the purchaser fails to pay the full purchase price there is no valid sale. This must be so, for to constitute a valid sale of land under customary law, three essential ingredients are required, viz:

(i) Payment of the purchase price

(ii) Purchaser is let into possession by the vendor

(iii) In the presence of witnesses

See: Aboyade Cole v. S.R.. Folami (1956) SCNLR 180; (1956) 1 FSC 66; Akingbade v. Elemosho (1964) 1 All NLR 154; Ogunbambi v. Abowaba, 13 WACA 222, 225. It follows, therefore, that where the purchase price is not fully paid there can be no valid sale, notwithstanding that the purchaser is in possession. That possession cannot defeat the title of the vendor – See: Oloto v. Administrator-General & Ors. 12 WACA 76. Where however, part payment of the purchase price was made and the balance is tendered within the stipulated time or, in the absence of a stipulated time, within a reasonable time, the vendor cannot resile from the contract of sale and the purchaser in possession will be entitled to a decree of specific performance – see: Kabba & Frank Fraser v. Daniel S. Young, 10 WACA 135. My attention was drawn in the course of researching for this judgment to a statement in Oluyede’s Modem Nigerian Land Law to the effect that:

“Once the purchaser is put in possession after paying part or all of the purchase price, the land is thereafter his. Even if he fails to pay the balance, the vendor cannot repudiate and transfer the land to a third party. The case of Seteolu v. Solebi (1959) Suit No. 103/59 Abeokuta Grade’ A’ Customary Court (See also Akinrinsola v. Jesiku (1961) suit No. 79/C1/61 Ondo Central Grade A Customary Court) is a good example. In this case, the purchaser agreed to pay N100 for the purchase of the land but paid only N40.00. It was held that failure to pay the remaining N60.00 did not affect the title of the purchaser. In effect, if the vendor purported to sell to a third party he had no title to pass. The President of the court asked a rhetorical question: If then a person has sold land in the customary way to another person, can he take it back because of non payment of the balance I think not.

It is interesting to note that in the case of Ajao Camp v. Adeyebu (1961) Suit No, 28/C1/61 Ondo Central Grade ‘B’ Customary Court, where the plaintiff sued the defendant to show cause why he trespassed on his cocoa farm which was sold to the plaintiff by the defendant the defendant pleaded that the plaintiff did not pay the balance of N25 of the purchase price, The court held ‘if the plaintiff failed to pay him (the vendor) he should seek his remedy in court by suing for the debt. Judgment was therefore given in favour of the plaintiff.”

This statement in my respectful view, does not represent good law. The cases cited in support of the proposition therein are decisions of the Grade’s A & B Customary Courts which must be taken to have been overruled by this Court in Odufuye v. Fatoke (supra).

Viewed even from the standpoint of the common law, payment of purchase price coupled with possession gives the purchaser an equitable title and he is entitled to seek an order of specific performance to compel the vendor to convey legal tile to him. But where the purchaser price is not fully paid, the purchaser will have no right to enforce specific performance – see Hewe v. Smith (1884) 27 Ch D 89, a case relied on by the learned trial judge.

In Howe v. Smith, the purchaser, on a sale of real estate, paid ‘a3500 “as a deposit, and in part payment of the purchase money.” The contract of sale provided that the payment should be completed on a day named, and that if the purchaser should fail to comply with the agreement the vendor should be at liberty to re’97sell and to recover any deficiency in price as liquidated damages. The purchaser was not ready with his purchase money, and after repeated delays, the vendor re’97sold the property for the same price. On an action by the original purchaser for specific performance, the Court of Appeal (England) held, affirming the decision of Kay J. that the purchaser had lost by his delay his right to enforce specific performance.

It was also held (but we are not concerned with that in this appeal) that the deposit, although to be taken as part’97payment if the contract was completed, was also a guarantee for the performance of the contract, and that the plaintiff, having failed to perform the contract within a reasonable time, had no right to a return of the deposit. Where the purchaser who has made a part’97payment of the purchase price is in default of payment of the balance, there is right in the vendor to rescind the contract of sale and re’97sell the property ’97 see: Howe v. Smith (supra); Mayson v. Clouet (1924 )A.C. 980 at 985 where the purchaser paid not only the deposit but also part of the purchase price but failed to pay the balance of the price at the stipulated time, the vendor rescinded the contract. On appeal to the Privy Council Per Lord Dunedin, delivering the judgment of the Council observed:

‘The law is quite plain. If one party to a contract commits a breach then if that breach is something that goes to the root of the contract, the other party has his option, He may still treat the contract as existing and sue for specific performance; or he may elect to hold the contract as at an end – i.e., no longer binding on him – while retaining the right to sue for damages in respect of the breach committed. The test in this case as to whether such an election had been made is a very simple one. Could the vendors on January I have sold to someone else without subjecting themselves to action at the instance of Sim Choon Kee for specific performance Their Lordships are of opinion that they clearly could.”

In an attempt to distinguish Howe v. Smith from the case on hand, the Court below, per Ademola, JCA was of the opinion that payment made by plaintiff and receipted for in Exhibit A was not a deposit but part-payment. I cannot see what difference this distinction makes in this case. The factual situation here is that plaintiff did not fully pay for the land he bought from the family of Jemi-Alade in 1965 and the family in 1972 resold the undeveloped part of it to the 1st defendant, after repeated demands made to the plaintiff to pay had yielded no results. On the authorities, there was neither a valid sale in 1965 under customary law nor had the plaintiff in 1972 equitable title to the land under the Common Law, such as would entitle him to a decree of specific performance. The question of whether what was paid was a deposit or part-payment only becomes relevant when determining the right of the purchaser to a refund of what he had paid. That issue does not arise in this case. The administratrix of Jemi Alade was entitled to sell and convey the land in dispute to the 1st defendant/appellant in 1972, following the failure or the plaintiff to pay the balance of the purchase price, despite repeated demands.

Having executed Exhibit G in favour of the 1st defendant in 1972, Mrs. Bucknor no longer had the legal estate in the land in dispute which she could transfer to the plaintiff in 1976. Exhibit B, by which she conveyed the 4 plots of land (including the land in dispute) to the plaintiff in 1976 was ineffective to transfer the legal estate in the land in dispute to the plaintiff. In the circumstance, the learned trial judge was right to have held that the 1st defendant/appellant had better title to the land in dispute and to have consequently dismissed plaintiff’s claims.

The conclusion I reach is that this appeal succeeds and it is hereby allowed. The judgment of the Court of Appeal is set aside together with the order for costs made therein. In its stead I restore the judgment of the trial High Court dismissing plaintiff’s claims. The defendants/appellants are entitled to the costs of this appeal and of the appeal in the Court below which I assess at N1,000.00 and N750.00 respectively.

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SC.57/1990