Spera in Deo Limited V. Peccuno Mineral Industry Nigeria Limited & Anor (2016)

LawGlobal-Hub Lead Judgment Report

TOM SHAIBU YAKUBU, J.C.A.

The subject matter in dispute herein is a contiguous pieces of land at Nkpor in Anambra State previously owned by the 1st respondent. The said 1st respondent being in dire and urgent need of funds to liquidate its indebtedness to the bank ? Union Bank of Nigeria Abakaliki branch which held the papers to the said parcels of land in respect of Mortgage transaction with the 1st defendant and threatening to sell off the land if the debt was not amortized immediately, approached the appellant to buy the property in question. The appellant agreed to buy only 8 plots out of the entire 16 plots belonging to the 1st respondent. It is the contention of the 1st respondent that the agreed price for the said 8 plots with the appellant was N175,000.00 and to be paid in bulk to stave off the imminent clamp-down and foreclosure by the bank ? its creditors. The appellant on the other hand contended that what she agreed with the 1st respondent as purchase price was N125,000.00 and to be paid instalmentally. The appellant not forthcoming with the money with the urgency required, 1st respondent met the 2nd

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defendant who agreed to buy off the entire 16 plots at N400,000.00 and to pay same in bulk immediately. The deal was struck and the property including the earlier 8 plots the appellant had indicated interest in were purchased by the 2nd respondent and the papers with the bank were released to the 2nd respondent.
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The 2nd respondent, on her application for joinder to the action, was so joined as a party on 27th July, 1990. The appellant, in her amended statement of claim had sought the following reliefs, to wit:
(i) A declaration that having made a binding agreement with the plaintiff to sell the property to the plaintiff, the 1st defendant is not entitled to sell the said property situate at Nkpor-Obosi Road, Nkpor, shown numbered plots 9 ? 16 on survey plan No. GAV/As57/89 to the 2nd defendant.
(ii) A declaration that the 1st defendant is not entitled to assign, sell or transfer property comprised in and assured under the Certificate of Occupancy registered as No. 43 at page 43 in volume 1011 without the consent of the Military Governor of Anambra State under S. 22 of the Land Use Act 1978 having been first sought and obtained and as no

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such consent had been sought and obtained.
(iii) A declaration that the purported assignment and transfer of the said property by the 1st defendant to the 2nd defendant is ineffective, null and void as no consent for such assignment and transfer had been sought from the Military Governor of Anambra State under S. 22 of the Land Use Act 1978 and none had been obtained.
(iv) A declaration that the Deed of Assignment dated the 1st day of September 1989 made between the 1st defendant and the 2nd defendant made without the consent of the Military Governor of Anambra State first had and obtained as required by S. 22 of the Land Use Act 1978 is ineffective, null and void.
?AGAINST THE 1ST DEFENDANT AS FOLLOWS:
(v) A declaration that the 1st defendant is bound by law to take all lawful steps to execute all lawful and proper documents necessary to assure unto and vest in the plaintiff the right of occupancy in respect of all that property situate along Nkpor-Obosi Road, Nkpor, shown numbered plots 9 ? 16 on survey plan No. GAV/AS 57/89.
(vi) Specific performance of oral agreement made at Abakaliki between the months of July and August 1989 for

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the sale by the 1st defendant to the plaintiff of certain Leasehold property situate at Nkpor along the Nkpor-Obosi Road in the Idemili Local Government Area numbered plots 9 ? 16 in survey plan No. GAV/AS 57/89.
(vii) An order directing the defendant subject to all consents as may be required by law to take all lawful steps and to execute all lawful documents necessary to assure unto and vest in the plaintiff the right of occupancy in respect of all that property situate along Nkpor-Obosi Road, Nkpor, shown numbered as plots 9 ? 16 on the said survey plan No. GAV/AS 57/89.
(viii) Further or alternatively, the sum of N500,000.00 damages for breach of contract.
(ix) Alternatively, rescission of the said contract and the repayment of the deposit of N125,000.00 paid there-under with interest at 30% per annum from the 10th day of August, 1989.
(x) An injunction restraining the 1st defendant from selling or assigning the said property to any other person except the plaintiff.
On the 15th day of December 2006, paragraph 32 of the Amended Statement of Claim was with the leave of Court amended by adding a new sub-paragraph 7(a).

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The new sub-paragraph now reads:
(i) ?An order setting aside as null and void the purported sale/transfer of plots 9 ? 16 shown on survey plan No. GAV/AS 57/89, from the 1st defendant to the 2nd defendant, after the inception of and during the pendency of this suit. Sub-paragraph 8 was also amended by substituting the damages of N500,000.00 claimed thereat to now read ?N6 Million Naira only.?
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The 1st respondent filed an amended statement of defence and a counter claim, in opposition to the appellant?s claim. Thereafter, the suit proceeded to trial. The appellant called three witnesses and tendered into evidence, four documentary exhibits ? A, B, C & D. The 1st respondent called one witness and tendered into evidence, one documentary exhibit ? O. At the end of the trial, the Court below, per E. A. Ngene, J., on 23rd April 2007, dismissed the appellant?s claim. This appeal is against that decision. There are six grounds of appeal upon which the appeal was erected.
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The appellant?s brief of argument settled by J. H. C. Okolo, SAN., dated 30th March, 2008 and filed on 16th April, 2008 was

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deemed as properly filed and served on the same 16th April, 2008. He identified four issues therein for the determination of the appeal, as follows:
(i) Whether the finding that there was no valid contract between the parties can be justified on the pleadings and evidence canvassed at the hearing?
(ii) Whether the Court was right in holding that TIME was indeed of the essence in the performance of the contract and consequently that the Appellant was the party in breach of performance?
(iii) Whether in the light of the Appellants contentions that the subsequent sale of the subject property, to the 2nd defendant was caught by the plea of ?Lis alibi pendens?, the failure of the Court to make any pronouncement thereon did not occasion a miscarriage of justice?
(iv) Was the trial Court justified in refusing the award or any part of the 30% interest claimed on the event of a refund of what was paid on the contract, for the reason proferred?
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The 1st respondent?s brief of argument, settled by M. C. Okonkwo, Esq., was dated and filed on 6th March, 2009. In it, he nominated three issues for the resolution of the appeal,

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thus:
(i) Whether the trial Court findings concerning the validity or otherwise of the contract of sale of the land in dispute, mode of payment for same and time being of essence in its performance was perverse.
(ii) If the answer to the question in (i) supra is in the negative, whether the trial Court was justified in upholding the sale of the land to the 2nd defendant/respondent.
(iii) Whether the trial Court was right in refusing to award damages for the alleged breach of contract.