Mr. Olusola Orioke v. Alhaji Fatai Kunle Onayemi & Ors (2023)

LAWGLOBAL HUB Lead Judgment Report – SUPREME COURT

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, JSC (Delivering the leading judgment)

The 1st respondent herein, as plaintiff before the High Court of Oyo State, holden at Ibadan Judicial Division initially instituted an action on 4th December, 1995 against the 2nd and 3rd respondents as 1st and 2nd defendants.

The 3rd, 4th and 5th respondents and the appellant herein were subsequently joined by orders of court. By his further amended statement of claim filed on 24/1/2003, he sought the following reliefs:

“Whereof the plaintiff claims specific performance against the second defendant of the contract made the 10th day of July, 1995 between the other three sisters and the plaintiff for the assignment of a landed property at SW7/43 Oke Bota, Ibadan measuring 814.16 square yards and as delineated on Plan No. SAP/122/Sogunro-Pitan licensed surveyor and attached to the deed of conveyance dated 28th October, 1961 and registered as instrument No. 46 at page 46 in 493 of the Land Registry Ibadan.

Alternatively, N1.5 million (One and a half million naira) damages jointly and severally against the defendants for breach of contract of an assignment of a parcel of landed property at Oke-Bota, Ibadan Oyo State entered into by the first defendant as agent of the second defendant with the plaintiff at Ibadan on the 10th day of July, 1995.

Annual Rental Value N2,000.00.

1. A declaration against the 2nd defendant that the deed of assignment dated 12th day of August, 1997 and registered as instrument No. 40 at page 40 in volume 3247 executed by him in favour of the 6th defendant during the pendency of this suit is null, void and of no effect whatsoever and ought to be vacated in the register of deeds of the department of Lands and Physical Paining of the Ministry of Lands Housing Physical Planning, Oyo State, Ibadan.
2. A declaration against the 5th defendant that the deed of assignment dated 12th August, 1997 and registered as instrument No. 40 at page 40 in volume 3247 of the registered of deeds by the Department of Lands and Physical Planning Ibadan in favour of the 6th defendant is irregular, null, and void and of no effect same having been registered carelessly and negligently and ought to be vacated in the register of deeds of the said Ministry of Lands, Housing and Physical Planning at Ibadan.
3. A declaration that the assignment of the property in dispute in this case by the 2nd defendant to the 6th defendant by virtue of deed of assignment dated 12th August, 1997 and registered as instrument No. 40 at page 40 in volume 3247 of the register of deeds at Ibadan during the pendency of this suit’ constitute an act of disrespect to this honourable court and ought not be relied upon by the 2nd and/or the 6th defendant for any purpose at all at the trial of this suit in this honourable court.”

The facts that gave rise to this appeal are as follows: the 3rd, 4th and 5th respondents inherited the property located at Oke-Bola, Ibadan, Oyo State from their late father, Emmanuel Ajayi Ekunseitan who died sometime in 1960. The 2nd respondent (1st defendant at the trial court) is an estate agent who was commissioned by the 3rd, 4th and 5th respondents to find a buyer for the house.

According to the 2nd respondent, the 1st respondent was interested in buying the house. After negotiations with the 3rd, 4th and 5th respondents, it was agreed that the purchase price would be N750,000.00 which the 1st respondent was to pay in two instalments.

The first instalment of N500,000.00 was paid on 10/2/1995 while the balance was paid on 29/9/1995. It was the case of 2nd respondent that when the first cheque for N500,000.00 was cashed, the money was shared between the 3rd, 4th and 5th respondents.

However, while the 4th and 5th respondents collected their share, the 3rd respondent did not collect his but asked the 2nd respondent to keep it until the entire purchase price was paid. When the balance of N250,000.00 was received, the 2nd respondent notified the 3rd respondent who, at that stage, informed him that he was no longer interested in the transaction as he had found a buyer who had offered N800,000.00 for the property.

He showed the 2nd respondent the cheque he had received from the new buyer issued on 3rd October, 1995. He asked him to return the N750,000.00 to the 1st respondent. The buyer who paid N800,000.00 was joined as the 6th defendant at the trial court on 26th April,1998 and is the present appellant in this appeal.

The 1st respondent was unhappy with the state of affairs, having fulfilled his own part of the contract, without the property being released to him. It was contended that it was the 3rd respondent who refused to perfect the document. This was what prompted him to institute the action before the trial court seeking the reliefs reproduced above.

The 1st, 2nd, 5th and 6th defendants filed their respective pleadings. The 3rd and 4th defendants did not file any process.

The 1st respondent had filed a caution at the Ministry of Lands, Housing and Physical Planning, Oyo State against the grant of any statutory Right of Occupancy in respect of the disputed property. It was however contended that inspite of the caution, a deed of assignment was executed between the 3rd respondent and the appellant and was duly registered at the Lands Registry in an attempt to render any decision of the court nugatory. The doctrine of lis pendens was pleaded.