R. O. Sanusi Vs I.a. Daniyan & Ors (1973)

LawGlobal-Hub Lead Judgment Report

COKER, J.S.C. 

The Appellant was the plaintiff in an action which was tried in the High Court, Lagos, (Dosumu, J.), and in which his writ is endorsed as follows:-

“The Plaintiff claims against the defendants specific performance of an agreement of sale made between the plaintiff of one part and the defendants on the other part dated the 12th August, 1966, in respect of a piece or parcel of land the building thereon situate lying being and known as No. 5A, Paul Okuntola Street, Idi-Araba, Federal Territory of Lagos.

The defendants have refused failed and/or neglected to execute a deed of conveyance in favour of the plaintiff in respect of the said transaction despite the readiness and willingness of the plaintiff to any the balance of the purchase price upon the execution of a deed of conveyance in his favour.

Alternatively the plaintiff claims against the defendants the sum of 1,975:s:d being special and general damages suffered by the plaintiff for the loss of his bargain occasioned by the refusal of the defendants on the contract of sale in favour of the plaintiff.”

The plaintiff later filed a Statement of Claim in which he stated that sometime in 1964 he made some payments of money to the defendants for the purchase of land at Mushin, originally belonging to their late father, one Mallam Imoru Daniyan and that Imoru Daniyan died in January, 1965; that after, some of his children had given him a conveyance of the land which he purported to buy from them, he discovered that one Alhaji Elias was also claiming the land and that on approaching the defendants who are the children of Mallam Imoru Daniyan, they promised to sell their family property No. 5A Paul Okuntola Street, at Idi-Araba, to the plaintiff for the sum of 1,750.

The Statement of Claim further avers that the defendants have failed or refused to execute to the plaintiff a conveyance of the said property at No. 5A Paul Okuntola Street, whilst still retaining the moneys paid to them by the plaintiff, and that in those circumstances the plaintiff was asking for an Order of Specific Performance or for Damages for Breach of Contract of Sale of the property. The defendant filed a Statement of Defence in which they denied ever getting any moneys from the plaintiff or ever agreeing to sell to him the firmly property at No. 5A Paul Okuntola Street, Idi-Araba, as claimed by the plaintiff.

Evidence was given at the trial by the plaintiff and his two witnesses and on the side of the defence by the 3rd defendant. The agreement to sell the landed property at Mushin was produced in evidence as Exhibit A, and when that purported agreement flopped, a new agreement was entered into and the subsequent agreement to sell No. 5A Paul Okuntola Street, Idi-Araba to the plaintiff for the sum of 1,750 was produced in evidence as Exhibit E. The plaintiff testified in the course of his evidence that the documents of title to the property No. 5A Paul Okuntola Street, Idi-Araba, i.e., Exhibit F, F1 and F2 were handed over to him by the 3rd defendant more or less immediately before the signing on execution of Exhibit E. In the course of a reserved judgment, the learned trial Judge came to the conclusion that the story set up at the trial by the defendants that the document Exhibit E was executed by them under duress was not true, and he rejected it. He observed on this point as follows:

“It is to be noted, however, that this was not their defence on the pleadings. The defendants on the pleadings flatly denied entering into an agreement to sell the property at 5A, Paul Okuntola Street, to the plaintiff. But after hearing both sides on this matter, and closely examining Exhibit “E”, I am satisfied that the third defendant was lying. I accept the evidence of the plaintiff and his witness that Exhibit “E” was executed in the Chambers of a Solicitor at Olorunsogo, and by all the signatories as free agents.”

The learned trial Judge then referred to the several payments made by the plaintiff to the defendants or to their late father and concluded that the plaintiff had not yet paid the full purchase price of the property, although he had executed a Promissory Note to the defendants to do so “immediately they execute a Deed of Conveyance” to him in respect of the said property. The learned trial Judge then observed as follows:-

“But out of the amount of 1,186:17s:6d paid, the sum of 886:17s:6d was paid in 1964 during the lifetime of Imoru Daniyan, the father, and the further sum of 300 paid after his death to the five of the defendants was in August, 1966. The plaintiff now seeks to import into this new transaction i.e., sale of 5A, Paul Okuntola Street, Idi-Araba a consideration which was in the past. It is the law that past consideration will not support a contract which is sought to be specifically performed. Robertson v. St. John, Vol. 29 English Reports at page 81. The plaintiff therefore will be left to his remedy at law, if any. As I have held earlier, there has been a valid contract of sale which no doubt the defendants have breached by their refusal to complete by not executing the deed of conveyance as promised in Exhibit “E”. For this they will be liable in damages.”

The learned trial Judge then proceeded to award to the plaintiff damages in the caustic sum of 42 with 50 guineas costs.

The plaintiff has appealed to this court against that judgment, and his complaint before us is, the judgment is not supported by the evidence in the case. Learned counsel for the plaintiff contends that there was sufficient evidence accepted by the learned trial Judge himself to warrant an Order of Specific Performance by executing the Deed of Conveyance prepared by the plaintiff and produced in evidence in the course of the trial as Exhibit J (or Exhibit J1). For the defendants the only argument put forward before us is the to the effect that the property at No. 5A Paul Okuntola Street, was important to the defendants and that no money passed under the document produced in as Exhibit E.

We observe first and foremost that there was a valid contract for the sale of the house i.e., No. 5A, Paul Okuntola Street, Idi-Araba between the plaintiff and the defendants. The learned trial Judge said so in his judgment, he also stated that he believed and accepted the evidence that the document Exhibit E was signed by the defendants voluntarily and not under duress as they falsely tried to suggest to him. The document Exhibit E after reciting the names of the defendants states so far as is material that-