Young Shall Grow Motors Ltd. V. Onalada & Ors (2020)
LAWGLOBAL HUB Lead Judgment Report
UWANI MUSA ABBA AJI, J.S.C.
This is an appeal against the judgment of the Court of Appeal, Lagos Division, delivered on 31/12/2013, unanimously dismissing the Appellant’s claim and affirming the judgment of the High Court of Lagos, delivered on 6/5/2005.
The Appellant, a transport company and a tenant of the 1st-4th Respondents, sued them at the trial High Court claiming an order of specific performance of the agreement for the sale of the property to her situate at No. 1, Ikorodu Road, Jibowu, Yaba, Lagos.
The 1st-4th Respondents’ defence was that they went into another transaction because the Appellant failed to consummate the transaction and that warranted the 1st-4th Respondents’ decision to sell the land to the 5th Respondent.
The 5th Respondent in this appeal counter-claimed for an order of declaration that he is the rightful owner of the property in question by virtue of the transaction between him and 1st-4th Respondents, amongst other reliefs.
At the end of the trial, the Court held that the 5th Respondent is the rightful owner of the property by virtue of his transaction with the 1st -4th Respondents and entitled to the right of occupancy in respect of the said property, and dismissed the Appellant’s claim.
Dissatisfied, the Appellant appealed to the Court of Appeal and the Court below unanimously dismissed the appeal and affirmed the judgment of the High Court. The Appellant has further appealed to this Honourable Court.
ISSUES FOR DETERMINATION:
The issues for determination, I shall extrapolate from the 4 issues formulated by the Appellant with those of the Respondents are as follows:
- Whether there was no valid and subsisting contract of sale of the property in dispute between the Appellant and the 1st-4th Respondents to transfer title to the Appellant.
- Whether the 5th Respondent was a bona fide purchaser for value without notice.
- Whether the failure of the lower Court to consider the Appellant’s issues 2 and 3 did not amount to denial of fair hearing.
Whether there was no valid and subsisting contract of sale of the property in dispute between the Appellant and the 1st-4th Respondents to transfer title to the Appellant.
The Appellant’s issues 1 and 2 fit under this issue for consideration.
The Appellant’s main argument under this issue is that the lower Court was wrong when it held that photocopies of bank draft could not take the position of consideration sufficient to induce a reasonable party into contract. He submitted that what the 1st-4th Respondents are contesting is that the photocopies of the drafts delivered to them are not legal tender and as such no consideration passed from the Appellant to the 1st-4th Respondents with respect to the property in dispute.
The Appellant’s learned Counsel urged this Honourable Court to hold that the Appellant furnished consideration in form of concrete promise (the issuance of a Zenith Bank draft for 18 million requested by the 1st -4th Respondents as purchase price) and the delivery of the photocopies of the said Zenith Bank draft to the 1st-4th Respondents’ solicitor on 7/5/2001 for sighting represents something of value in the eye of the law. He further urged the Court to allow this appeal as the loss of the Appellant cannot be remedied in damages having been a sitting tenant in the property in dispute since 1998 and still in possession as of date.
The Respondents’ learned Counsel argued that an action for specific performance implies the existence of a valid contract, the breach of which is sought to be remedied by an order for specific performance. It is submitted that in the instant appeal, there was no valid and enforceable contract between the 1st-4th Respondents and the Appellant capable of being enforced by an order for specific performance.
It was his submission, that it is clear from the weight of evidence adduced before the trial Court, the findings and reasoning behind the decisions of the two Courts below that the Appellant failed to fulfill the requirements of a valid contract and therefore is not entitled to an order of specific performance. He urged the appeal to be dismissed.
Parties are bound by their pleadings and one will not be allowed to deviate there from. The Appellant pleaded in paragraphs 17, 18 and 19 of its statement of claim summarily that it issued on 4/5/2001 a bank draft of N18Million in the name of Counsel for the 1st-4th Respondents and that same to be delivered to the Respondents by their Counsel on 7/5/2001 along with the vetted Deed of Assignment. He admitted that the 1st-4th Respondents accepted that they received only photocopies of the drafts after the deadline of 5/5/2001 at 11am.
In defence, the 1st-4th Respondents specifically at paragraph 15 averred that:
Paragraph 17 and 18 of the Statement of Claim are false. The Plaintiff only forwarded to the 7th Defendant photocopies of a draft 00012741 of Zenith International Bank Ltd for N18 Million, and draft No.00012746 for N233,000. The original being the real legal instrument of money were (sic) never forwarded. The Defendant further plead that, this was further proof of Plaintiff (sic) bad faith and a culmination of the stalling efforts of the Plaintiff.
It appears that there was some hide and seek game going on between the Appellant and the 1st-4th Respondents in respect of the sale of the disputed property. It must be noted also that the transaction spanned some years between the parties when eventually an offer was made by the Appellant to the 1st-4th Respondents on 4/5/2001 vide a bank draft of N 18 Million. Unfortunately, another person swooped in and bought the property from the 1st-4th Respondents. What happened then that the Appellant could not secure the property? Was it robbed or what? It is obvious that the inchoate transaction was eventually truncated!
Let me quickly illustrate the transaction in this nature:- The 1st-4th Respondents advertised the property situate at No.1 Ikorodu Road, Jibowu, Yaba, Lagos and the Appellant offered to buy at N18 Million and negotiations started and since the property was advertised, the 5th Respondent eventually completed the transaction and bought it ahead of the Appellant.
In a dispute over sale of land generally, it has been held that to constitute a valid sale of land, there must be; 1. Payment of the purchase price, 2. Purchaser is let into possession by the vendor, and 3. Presence of witnesses.
See Per OGBUAGU, JSC in CHABASAYA V. ANWASI (2010) LPELR-839(SC) (PP. 29-30, PARAS. E-C), Per SANUSI, JSC in ATANDA V. HON. COMMISSIONER FOR LANDS AND HOUSING, KWARA STATE ANOR (2017) LPELR-42346(SC) (PP. IS-20, PARAS. F-A). There are therefore essentially three ingredients of a valid contract for the sale of land, viz: an offer, an unqualified acceptance of that offer and a consideration. sec CHESHIRE AND FIFOOT, LAW OF CONTRACT, 9TH EDITION PP. 27 31, TSOKWA MOTORS LTD. V. UBN LTD. (1996) 9 NWLR (PT.471) 129 AT 145, PTI V. UWAMU (2001) 5 NWLR (PT.705) 112 AT 222.
In the present transaction for the sale of the property at No. 1 Ikorodu Road, Jibowu, Yaba, Lagos, it must be borne in mind that although the parties were represented by Counsel, there was nevertheless no unqualified acceptance or any consideration furnished.
From the deluge of evidence during the trial, it was manifest that the transaction was cut short or incomplete for a formal and valid contract of sale of land to have evolved and birthed.
At page 201, PW 1 under cross examination divulged that ”…The consideration of the sum of N18,000,000.00 was rejected. They refused to collect the original bank draft. I sent a photocopy of the draft to the family. We did not send the original bank draft to the family.”
Similarly, at page 203 of the record, under cross examination, it was revealed that “The sum of N18,000,000.00 net was stated there as the consideration. The 1st-5th Defendants were there stating that the buyer, the Plaintiff was still to pay some additional sum over the N18 million, described as ‘all rates, taxes, fees and charges in pursuance of perfection of change of title “. Furthermore, PW1 at page 191 stated that “I agree that the documents I took to Dr. Layonu’s firm on that day (03/05/01) were not the final documents because…”
All these pieces of evidence came directly from the Appellant’s witnesses revealing that there was no concluded transaction before it was called off by the 1st-4th Respondents.
Again, the 1st-4th Respondents at the trial led evidence agreeing with that of the Appellant that there was no concluded or valid contract between them and the Appellant enforceable in law. DW1 at page 221 inter alia evinced that “When it became obvious that the Plaintiff would not attend the meeting, the family was very upset and they left in frustration, saying they would not deal with the Plaintiff anymore.” DW2 gave his own part of the evidence at page 228 that “…at the 4th of May, the position of the family was that the transaction should be concluded on 05/05/01. When we did not see PW1 on the 5th of May, my family got angry and decide (sic) to of (sic) or get about dealing with the claimant.”
DW3 similarly exposed at page 232 that “I remember 05/05/01. Members of my family were present in Dr. Layonu’s office on that day, for the conclusion of the contract transaction. The transaction was not concluded because the Plaintiff did not show up. That is neither the company’s representative nor any other representative showed up on that date.”
In the instant appeal, although the bank draft issued the 1st-4th Respondents’ Counsel may suffice and qualify as a bill of exchange to bind the parties, these points must be carefully examined:
- The 1st-4th Respondents did not have the bank draft but the photocopies,
- The Appellant instructed that they should not be given the original,
- The Appellant nor his representative did not show up to conclude the transaction,
- The 1st-4th Respondents decided not to deal with the Appellant any more on the land transaction following the conduct of the Appellant,
- The Appellant supposedly informed the 5th Respondent (the present purchaser of the said property) that he was no longer interested in the transaction.
All the above are pointers that the Appellant by express conduct did not want to conclude the transaction and to establish a valid contract. Therefore, where an agreement is inchoate and has not gone beyond negotiations, it cannot be enforced as a concluded contract. see Per AGBAJE, JSC in KANO STATE URBAN DEVELOPMENT BOARD V. FANZ CONSTRUCTION CO. LTD (1990) LPELR-1659(SC) (P. 82, PARAS. A-B).
More so, why did it take years for the Appellant (who had every opportunity and privilege) to conclude the transaction, whereas it took just few days for the 5th Respondent to conclude?
When one person has by virtue of his conduct intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative in interest shall be allowed, in any proceeding between himself and such person’s representative in interest to deny the truth of that thing. See Section 169 of the Evidence Act.
Equity follows the law, acts in personam and would not allow a party to use legal technicalities to commit fraud, as the Appellant herein has set itself about to do. sec Per EKO, JSC in BULET INT’L (NIG) LTD & ANOR V. OLANIYI ANOR (2017) LPELR- 42475(SC) (PP. 45-46, PARAS. F-C).
Bank draft can be accepted as cash equivalent in some business transaction and all depends on the contractual terms and agreement between the parties. However, can the photocopy of the bank draft issued to the 1st-4th Respondents qualify as consideration based on the contract between the parties? Before, there is a contract of sale of land, there must be a definite offer by the Offeror (the Appellant) and a definite acceptance by the Offeree (the 1st- 4th Respondents). Contracts are enforceable when there is consideration. Consideration is something that indicates conclusively that the Promisor intended to be bound. Consideration is thus mandatory for enforceability. There are some contracts where it is difficult to identify offer, acceptance and consideration. In such a situation, a valid contract exists when the parties are ad idem on all the terms of their agreement, and this is established by all sides to the agreement appending their signatures to the contract document. See Per RHODES-VIVOUR, JSC in ABBA v. SHELL PETROLEUM DEVELOPMENT COMPANY OF NIGERIA LIMITED (2013) LPELR-20338(SC) (PP. 32- 33, PARAS. G-D). In fact, PW2 admittedly conceded to this at page 209 that “I will not say that a copy of a bank draft is acceptable as payment”.
Equally evident and demonstrable is that both the Appellant and the 1st-4th Respondents have been at cross roads and never came to consensus ad idem concerning the sale of the property at No. 1 Ikorodu Road, Jibowu, Yaba, Lagos. This impelled the lower Court to rightly and appositely hold at page 651 that “It is surprising that a purchaser who initiated bank drafts towards payment would for some clever reasons withhold the original drafts and hand-over photocopies and insist that such serves as sufficient consideration, this is certainly far from it… ”
The implication of this is simple: the Appellant did not pay the price of the said property; hence there was neither consideration nor contract. Where the purchase price is not fully paid, there can be no valid sale; notwithstanding that the purchaser is in possession. Possession cannot defeat the title of the vendor. Sec Per OGUNDARF„ JSC in ODUSOGA & ANOR V. RICKETTS (1997) LPELR- 2256(SC) (PP. 16-17, PARAS. G-C). It follows therefore generally, that where a fundamental term in a contract is left undecided and undone, then there is no contract. See Per ALOYSIUS IYORGYER KATSINA-ALU, JSC in SALIBA V. YASSIN (2002) LPELR-S059(SC) (P. 6, PARAS. B-C).
From the foregoing, it is evident that the negotiations between the parties had not crystallized into a binding contract, and afortiori, there could have been no breach of contract requiring specific performance or enforcement of same. PW1 clearly settled and sealed the case that there was no consideration or valid contract when at page 201 he exposed that ” the consideration of the sum of N18,000, 000.00 was rejected. They refused to collect the original bank draft.” In contract of sale of land, the law is well settled that failure to pay the purchase price constitutes fundamental breach which obviously goes to the root of the case upon which the Court cannot decree specific performance. See Per SANUSI, JSC in ACHONU V. OKUWOBI (2017) LPELR-42102(SC) (P. 35, PARAS. E-G). The Appellant has not therefore been conferred with any inurement or right for specific performance when he has not fulfilled the condition precedent for a valid contract of sale of land.
This issue is resolved against the Appellant.
Whether the 5th Respondent was a bona fide purchaser for value without notice.
It is contended by the Appellant’s learned Counsel that the sale of the property in dispute to the 5th Respondent is not valid and should be nullified since the 5th Respondent became aware of the transaction between the Appellant and the 1st-4th Respondents to buy the property for N18 Million. He urged the resolution of this issue in favour of the Appellant.
The 5th Respondent on the other hand submitted that having made enquiry from the Appellant when he and others visited the Appellant’s manager in his office, he was informed by the manager that he was not interested in the property and that was why he could not pay for it. with this information, he paid for the property at the cost of N20 Million. He asked that this issue be resolved against the Appellant.
The Appellant made this its 3rd issue and therefore I cannot gloss over it.
Having considered how the Appellant blew off a golden opportunity he had to buy the disputed property under its possession and tenancy, the 5th Respondent came from behind to grasp it. At page 236, the 5th Respondent gave evidence that: ”Before buying the property, I asked Udeji why the sitting tenant could not buy the property. He informed me that the property was placed on public offer because the Claimant could not agree with the family on buying the property. I doubted the truth of this statement so I called upon my son and the manager of my Lagos office to both go to Obianodo’s office to confirm why he could not buy the property. We all went to see him together and Obianodo told me that he was not interested in buying the property and that is why he has not paid for it…We left and I agreed with my people that since we have discovered that the Claimant was not interested, we should buy the property. So I paid the sum of N20 Million to the family.”
Having considered the transactional and contractual antecedents between the Appellant and the 1st-4th Respondents, the 5th Respondent in a snap concluded every process and bought the property that took the Appellant years to buy or ordinarily pay for. In fact, he paved a way for the 5th Respondent and induced him to buy the property when he told him that he was no longer interested and gave cogent reason for not doing so. He is therefore estopped from saying or acting otherwise.
A bona fide purchaser for value is one who has purchased property for valuable consideration without notice of any prior right or title, which if upheld, will derogate from the title which he has purported to acquire. See Per FABIYI, JSC in BEST (NIG) LTD V. BLACKWOOD HODGE NIG LTD 85 ANOR (2011) LPELR-776(SC) (P.28, PARAS. D-E).
It has been proved already that there was no contract of sale of the property in dispute between the Appellant and the 1st-4th Respondents when the 5th Respondent came in to conclude the contract and pay the purchase price for the property. Thus, the plea of the Appellant that the 5th Respondent is not a bona fide purchaser for value without notice cannot be sustained or is completely out of place. On the other hand, the 5th Respondent has proved that he bought the said property unencumbered by previous legal or equitable title whatsoever and this was corroborated by the Vendor, the 1st-4th Respondents. The matter then is sealed.
Where a plea of bona fide purchaser for value is being made, there must be a valid transfer of the property to the man raising that plea. So where a deed of purchase or transaction upon which the plea is founded, transferred or conferred no estate or title to the purchaser for value, the plea is absolutely useless. see Per WALI, JSC in BRAIMAH V. ABASI ANOR (1998) LPELR-801(SC) (P. 28, PARAS. C-F). The 5th Respondent however has all the requisite documents for the transfer of title to him.
This issue is unreservedly resolved against the Appellant.
Whether the failure of the lower Court to consider the Appellant’s issues 2 and 3 did not amount denial of fair hearing.
The Appellant’s learned Counsel argued that the failure of the lower Court to consider its issues 2 and 3 led to a miscarriage of justice and a breach of the Appellant’s right to fair hearing. Further, that the judgment of the lower Court would have been different and favourable to the Appellant had those issues been considered by the lower Court. He urged this Honourable Court to consider these issues based on Order 8 Rule 12 of the Supreme Court Rules and to allow this appeal.
The Respondents argued hereunder that the adoption of the 5th Respondent’s issues for determination properly determined the crux of the issues between all the parties. That there is nothing contained in the Appellant’s issues 2 and 3 which is not substantially embedded and considered in the 5th Respondent’s issues 1 and 2 for determination, which the Court below adopted as the issues that properly determined the appeal. It is submitted also that the Appellant has not shown how the alleged non-consideration of its issues 2 and 3 led to a miscarriage of justice and alleged breach of the Appellant’s right to fair hearing, and neither did he show how the judgment of the lower Court would have been different and favourable to the Appellant. He urged this Court to affirm the concurrent judgments of the two lower Courts and dismiss this appeal in its entirety.
The issues 2 and 3 the Appellant alleged were desolated and abandoned by the lower Court thereby foisting denial of fair hearing and injustice on it, are:
- Whether the claimant/ Appellant was entitled to an order of specific performance
- Whether the learned trial judge was right when she granted the 6th defendant’s claim that the defendant is the rightful owner of No 1 Ikorodu Road Jibowu, Yaba, Lagos by virtue of the transaction between him and the 1st-5th defendants.
The lower Court having listed all the issues formulated for consideration by all the parties in their respective order at pages 635-636, amalgamated and adopted them under the 2 issues formulated by the 5th Respondent at page 637 as fitly apt for the determination of the appeal. The 5th Respondent’s issues the lower Court adopted are:
- Whether the trial Court was right in refusing the appellant’s prayer for specific performance in view of the overall circumstances of this case.
- Whether the trial Court was right in granting the 6th (Now 5th) respondent’s claim as the rightful owner of the property lying and situate at No. 1 Ikorodu Road, Jibotvu, Yaba Lagos.
Looking microscopically at the Appellant’s issues 2 and 3 and the 5th Respondent’s 2 issues above will only reveal that they are Siamese twins that can only be differentiated by the words and semantics used by the respective learned Counsel but pre-eminently same in every substance and content. I personally cannot see any difference in these 2 issues that the Appellant cries that its issues 2 and 3 were abandoned by the lower Court.
Obviously, this must have incited the lower Court to wisely adopt and merge them when at page 636 it considered that:
The issues submitted by parties in this appeal appeal to be a duplication. I am sure resolution of the issues submitted by the 5th respondent will sufficiently resolve the issue in controversy between the parties…
A Court is not obligated to adopt the issues set down for determination by an Appellant, as a Court is free to adopt the issues as crafted by either of the parties so long as the issues arise from the grounds of appeal. Again, a Court is at liberty to re-formulate issues from that of any of the parties in order to give it precision and clarity, the condition being that, the issues so identified by the Court flow from the grounds of appeal as the Court has to do that which is convenient within the bounds of the law in getting at the answer to the question or questions raised and in so doing, deliver justice. See Per PETER-ODILI, JSC in AUWALU V. FRN (2017) LPELR-43824(SC) (PP. 32-33, PARAS. F-E), relying on UNITY BANK V BOUARI (2008) 7 NWLR (PT. 1086) 333 AT 401; DADA V DOSUNMU (2006) 9 SCNJ 71.
The essence of the formulation of issues is to reduce the grounds of appeal into terse, compact formulations which take cognizance and consideration of the same issues running through more than one ground of appeal. To this end, where issues for resolution in an appeal are formulated by the parties, an appellate Court can adopt, re-frame or re-formulate its own issues which are, in its opinion, proper for the determination of the appeal.
A party who complains about the formulation of issues by the Court must say what injustice has been done to him by such formulation or fair hearing denied. In the absence of such evidence, an appellate Court cannot reverse the decision of the lower Court. The formulation of the issue by the Court must result in miscarriage of justice for this Court to intervene in favour of the Appellant. See Per TOBI, JSC in NWANA V. FCDA & ORS (2004) LPELR-2102(SC) (Pt. 15-16, PARAS.G-A).
There is no iota of evidence before me that injustice or denial of fair hearing was wrought on the Appellant because of the adoption of the 5th Respondent’s issues by the lower court. This being a concurrent decision of the trial and lower Court, the Appellant’s case is irreparably defective for him to have the hand-shake or kiss of justice from this Apex Court.
I therefore resolve this issue against the Appellant. The appeal is hereby dismissed and I affirm the decision of both the trial and lower Courts. Cost of this suit is assessed at N500,000.00 against the Appellant in favour of all the Respondents.