3PLR – ALHAJI YUSUF ADENIRAN V. ALHAJI AZEEZ LAYI OLAGUNJU

POLICY, PRACTICE AND PUBLISHING, LAW REPORTS  3PLR

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ALHAJI YUSUF ADENIRAN

V.

ALHAJI AZEEZ LAYI OLAGUNJU

COURT OF APPEAL

[ILORIN DIVISION]

3PLR/2001/18 (CA)

OTHER CITATIONS

17 NWLR (Pt. 741) 159

BEFORE THEIR LORDSHIPS

MURITALA AREMU OKUNOLA, JCA (PRESIDED)

PATRICK IBE AMAIZU, JCA (DELIVERED THE LEADING JUDGMENT)

WALTER SAMUEL NKANU ONNOGHEN, JCA

 

REPRESENTATION

T.O.S. Gbadeyan Esq, with Mrs. Lara Aluko AND Lawrence Opoola Esq, for the appellant

O.J. Adesoke, Esq, for the respondent.

 

MAIN ISSUES

COMMERCIAL LAW – CONTRACT – Essential requirements for validity – Contract of sale of land – Need to be in writing – What the document must contain – Whether the law prescribes a special form for the document

COMMERCIAL LAW – CONTRACT – Doctrine of Part Performance – Basis – When applicable  – Conditions that must be satisfied before court will utilize the doctrine of part performance to enforce contract of sale of land without a note or memorandum in support of the agreement

COMMERCIAL LAW – CONTRACT – Specific Performance – Contract of sale of land – When the court will order specific performance of same – Need for plaintiff to discharge his obligations under the contract

REAL ESTATE/LAND LAW – Contract of sale of land – Need to be in writing – what the document must contain – Whether the law prescribes a special form for the document.

REAL ESTATE/LAND LAW – Contract of sale of land – Conditions that must be satisfied before the court will utilize the doctrine of part performance to enforce same without a note or memorandum in support of the agreement.

REAL ESTATE/LAND LAW – Contract of sale of land – When the court will order specific performance of same – Need for plaintiff to fully discharge his obligations under the contract to entitle him to the relief.

PRACTICE AND PROCEDURE – ACTION:- Issue of fraud – When raised in a civil case – Need to specifically plead and prove same.

PRACTICE AND PROCEDURE – PLEADINGS:– Amendment of – here a party has closed his case –Guiding principles.

 

 

MAIN JUDGMENT

SPATRICK IBE AMAIZU, J.C.A (Delivering the leading judgment):

This is an appeal against the judgment of Ibiwoye J, of the Kwara State High Court, sitting at the Ilorin Division. The judgment was delivered on the 23rd day of September, 1998.

 

In the suit, the plaintiff now the respondent claimed two reliefs against the defendant now the appellant. Pleadings were filed and duly exchanged. Both parties amended their pleadings at least once. The trial proceeded on the amended pleadings. The claim in the amended statement of claim reads –

 

“(a)    A declaration that the deed of transfer relating to the said house bought by the plaintiff from the defendant and lying and being at opposite Vehicle Inspection Office (behind Federal Housing Estate) Kulende, Ilorin, Kwara State dated 11th of April, 1991, between the plaintiff and defendant is valid with legal effect.

 

(b)     An order of specific performance against the defendant for a concluded agreement of sale on the building situate, lying and being at opposite Vehicle Inspection Office (behind Federal Housing Estate) Kulende, Ilorin.

 

(c)     A perpetual injunction restraining the defendant and or his agents, assigns or privies from entering or living in the house and from collecting rents on the house and to refund the money so collected from April 1991 on the house lying and being at opposite Vehicle Inspection Office (behind Federal Housing Estate) Kulende, Ilorin”.

At the trial, the respondent gave evidence and called four witnesses. The appellant gave evidence and called two witnesses.

 

Briefly, the facts which led to this appeal so far as they are material to the questions which call for our determination are – the respondent wanted to buy a house. He asked his relation to look for one for him to buy. About the same time, the appellant who was a transporter decided to sell his house as he was going back to his home town – Ijebu – Ijesha. He contacted the same estate agent through his relation to put up the house for sale. The estate agent took the respondent to the house. The respondent liked the house and expressed a desire to purchase it. He was told that the price was N80,000. He: offered N60,000 which was accepted by the owner.

 

The appellant insisted that the agreement for the transfer of the house to the respondent must be prepared by Ibukun-Olu chambers. It was the chambers that prepared the agreement for the appellant when he purchased the land on which the building stands. The parties thereafter went to the chambers for the agreement. It was there that the respondent paid the plaintiff the agreed sum of N60,000. The agents who linked the parties asked for a commission of N10,000. The appellant accepted to pay the commission of N10,000 but insisted that it would be added to the purchase price, thus making it N70,000.

 

After the parties had signed the agreement, the appellant asked the respondent to allow him to stay for a month before packing out of the house. The appellant however introduced the respondent to the tenants as the new land lord. At the end of the one month, the appellant requested that he be allowed to stay for another 3 months.

 

The respondent agreed to the extension. During the period of that three months, the respondent carried out construction work on the building by adding another structure thereon. At the end of the 3 months, the respondent received a letter from the appellant asking him to pay N200,000 for the house or else to take back the money he had paid.

 

The evidence of the appellant on the other hand is that he offered to sell his house for N200,000. He did not know that it was sold for N60,000 because he was blind. It was when he showed his bank pass book wherein part of the money realised from the sale was deposited that he was told that the purchaser did not pay up to N200,000 for the house. He decided to back out of the sale. Finally, I observe that the parties tendered documents to support their case.

After hearing the parties and their witnesses and the addresses of counsel, the learned trial Judge gave a considered judgment. Part of the judgment reads

 

“By the evidence of PW1, PW2, PW3 and PW5 it is quite clear that the price for the house is N60,000 while N10,000 for the agent was added to make it N70,000. This was agreed upon by both parties at the time of the sale of the house. It is also the evidence of PW2 that N58,000 was paid into the bank vide exhibit 1 dated 12/4/91 while the defendant withheld the sum of N2,000. It was later that the defendant unilaterally put the price of the house at N200,000. It is therefore inconceivable to say that no ascertainable consideration for the contract sale, as submitted by the learned counsel for the defendant (sic). The evidence of DW2 has shown clearly that the defendant was not blind at the time of the contract.

The result of all I have been saying is that the plaintiff’s case succeeds as such the plaintiff’s claim is hereby granted.”

 

The appellant was dissatisfied with the judgment. He has appealed to this court. The learned counsel for the parties filed and exchanged their briefs of argument. Before the appeal was heard, the learned counsel for the respondent brought a motion on notice praying the court for –

 

“1.     An order for leave of this honourable court to allow the respondent/applicant amend his statement of claim on page 116 of the record by adding the underline paragraph 14(B) of exhibit “A”.

 

2. An order deeming the proposed exhibit “A” as being amended in the record and deeming same as properly filed and served.

 

3. And for such further order(s) as the honourable court may deem fit to make in the circumstances”.

 

The learned counsel for the respondent moved the motion before the appeal was heard. It was vigorously opposed by the learned counsel for the appellant. This court after considering the submissions of the learned counsel for the parties granted the application for an amendment. With the amendment, the reliefs sought by the respondent in the lower court now read

 

“1.     A declaration that the deed of transfer relating to the said house bought by the plaintiff from the defendant and lying and being at opposite Vehicle Inspection Office, (behind Federal Housing Estate) Kulende, Ilorin in Kwara State dated 11th of April, 1991 between the plaintiff and the defendant is valid with legal effect.

 

2. Alternatively, an order of specific performance against the defendant for a concluded agreement of sale on the building situate and being at opposite Vehicle Inspection Office (behind Federal Housing Estate) Kulende, Ilorin, as per the evidence before the court.

 

3. A perpetual injunction re attaining (sic) the defendant and or his agent, assigns, or privies from entering or living in the house and to refund the money so collected from April, 1991 on the house lying and being at opposite Vehicle Inspection Office (behind Federal Housing Estate) Kulende, Ilorin, Kwara State.”

 

Both briefs were adopted and relied upon at the hearing of the appeal. Gbadeyan Esq, of counsel cited two additional authorities and urged the court to allow the appeal. On the other hand, Adeseko Esq, of counsel urged the court to dismiss the appeal.

 

Gbadeyan Esq, of counsel identified the following issues in his brief of argument for determination namely-

 

“1.     Whether the court can make a declaratory order validating a deed of transfer dated 11th April, 1991 which it had earlier on rejected in evidence and so marked.

 

2. Whether or not the grant to the plaintiff/ respondent by the trial Judge of an equitable remedy or relief of specific performance and the 3rd relief as claimed in his pleading and upon available evidence, is well founded in law.

 

3. Whether or not the learned trial Judge properly evaluated the evidence at his disposal in this case so much so that he can be adjudged to have reached correct finding or decisions in law.

 

4. Whether the leave granted to the plaintiff to amend his writ of summons and amend statement of claim was proper in law.”

 

Adeseko Esq, in his brief of argument adopted issue 2 formulated by the appellant’s counsel. In addition, he formulated the following issues

 

1. Whether despite the rejection of deed of transfer, the trial court can still validate sale of the building agreement between the parties based on oral and other documentary evidence presented before the court.

 

2. Issue No. 2 as formulated by the appellant’s counsel.

 

3. Whether having regard to the amendment granted the plaintiff amending his writ and statement of claim as at the time the trial court granted the amendment the grant to the respondent a specific performance is wrong in law (sic).

 

I have carefully considered the above issues formulated by the learned counsel for the parties. It seems to me that this appeal can be disposed of on the following two issues-

 

1. Whether the learned trial Judge was right in law in granting the plaintiff the equitable relief of specific performance after he had rejected the deed of transfer dated 11th April, 1991.

 

2. Whether the leave granted the plaintiff to amend his writ of summons and the amended statement of claim was proper in law.

 

Before I deal with the above issues I have to dispose of the preliminary objection raised by the learned counsel for the respondent in his brief of argument. The objection reads as follows-

 

“Take Notice that the respondent shall at the hearing of this appeal rely on the following preliminary objections

 

1. The appellant’s brief dated 29th December, 1999 and filed on the same date is incompetent same not being filed within time.

 

2. The appellant’s record that was filed on the 11th Nov. 1998 at the lower court was served on the respondent on 16/2/99 and later filed his brief on the 29th December, 1999, without obtaining the leave of the court.”

 

The learned counsel submitted that by order 6 rule 2 of the Court of Appeal Rules, the appellant should file his brief within 60 days of receiving the record from the lower court. He reminded the court that the record of proceedings were served on the respondent’s counsel on 16/2/99 by the appellant’s counsel. In the learned counsel’s view, it should be presumed that the appellant received his own brief on the same date. He urged the court to strike out the brief as it is incompetent as the appellant did not obtain the leave of court before filing his brief.

 

Gbadeyan Esq, of counsel in his reply submitted that the gravamen of the objection is that –

 

“it is presumed that the appellant received his own brief on the same date.”

 

He observed that this is a mere speculation and urged the court to dismiss the objection. This court is asked to presume that the appellant received “his own brief on the same date”. To presume means according to Oxford Advanced Learners Dictionary “to suppose to be true, to take for granted etc”. It is very elementary that no court acts on presumption. It acts on hard facts. In that case, the preliminary objection cannot stand.

 

There is however a more important reason why the preliminary objection should be dismissed. The appellant filed before this court a motion on notice praying the for –

 

“1.     Extension of time within which to ask for leave to file the appellant’s brief of argument, reply brief and other processes out of time etc.”

 

The motion was heard by this court on the 6th of July, 2000. The record shows that Adesoko Esq, of counsel did not object to the granting of the application. Accordingly, the application was granted, and the sum of N1,000.00 was awarded as costs infavour of the respondent. It is obvious that in the light of the foregoing, the objection is mischievous and was raised in bad faith and calculated to mislead the court. The preliminary objection is dismissed.

 

I now deal with the submissions of the learned counsel on the above two issues. On issue one, Gbadeyan Esq, of counsel referred to a passage in the judgment. It reads –

 

“With regard to issue No. 1 raised by the learned counsel for the defendant it is obvious that the court cannot make a declaratory order validating the deed of transfer earlier on rejected in the case.”

 

He submitted that in the light of the above, the learned trial Judge was wrong in law to have held later in the judgment that

 

“However the abundant evidence of the plaintiff and his witnesses has shown that there was a valid sale of the house of the defendant.”

 

In the learned counsel’s view, there is no evidence to support the above finding of the lower court. He made the same submission in respect of the following finding of the lower court i.e.,

 

“I am therefore in full agreement with the submission of the learned counsel for the plaintiff that from the surrounding circumstances inferences can be drawn that with or without the deed of transfer there is a valid sale of the building by the defendant to the plaintiff.”

 

The learned counsel submitted that the learned trial Judge was not consistent in his findings. In the learned counsel’s view, an inadmissible evidence cannot be a proper basis for any declaration of right. He referred to the following cases –

 

Okeya Trading Co. v. A.G. Kwara State (1992) 7 N.W.L.R (Pt. 254) 412.

 

Romaine v. Romaine (1992) 4 N.W.L.R (Pt. 238) 650.

 

NITEL Plc v. Rockonoh Properties Co. Ltd. (1995) 2 NWLR (Part 378)

 

He contended that the lower court having rejected the deed of transfer, even if the rejection was wrong in law, could not act upon it. To buttress this point, the learned counsel cited the case of Akpasubi v. Unweni (1982) All N.L.R. 322 where the Supreme Court held that –

 

“It is elementary, I think that once a trial court rejected the evidence of a witness and the Judge’s decision in regard thereto has not been challenged on appeal that is the end of that evidence for ever.”

 

The learned counsel referred to another passage in the judgment which runs thus

 

“Since there is a breach of contract, the plaintiff is entitled to an order of specific performance. In this particular case it is my view that damages cannot adequately compensate the plaintiff herein for breach of the contract for sale of the defendant’s house”.

 

It is the learned counsel’s view that the learned trial Judge did not appreciate “the fact and laws applicable in this case”.

 

Finally on this, the learned counsel submitted that the 2nd relief sought in the further amended statement of claim is incompetent “and not capable of such grant in law”. He gave five reasons for the submission. The first reason is that the respondent did not lead evidence to support the new paragraph 14 (b) in the amended statement of claim. The learned counsel reminded the court that the paragraph was added after the respondent had closed his case. He cited the following cases –

 

Otanioku v. Alli (1977) 11 – 12 S.C. 9 at 13.

 

Adegbite v. Ogunfaolu AND Or. (1990) 4 N.W.L.R. (Pt. 146) 578.

 

The learned counsel gave as his second reason the fact that it is not right in law and equity for the respondent to combine his claim “on both deed of transfer of 11th April, 1991 and at the same time, equitable remedy or relief of specific performance”. He referred to the case of Adenuga v. Lagos Town (1950) 13 WACA 125 at p. 126.

 

The third reason is that under section 131(l) of the Evidence Act where a grant or other disposition of property has been reduced to the form of a document or series of documents no evidence may be given of such contract grant or disposition etc. except the document itself or secondary evidence of its contents. He cited the cases of

 

Alli v. Ikusebiala (1985) 1 N.W.L.R. (Pt. 4) 630 at 641.

 

Okubule v. Oyagbola (1990) 4 NWLR (Part 147) 723.

 

Sajere v. Iretor (1991) 3 NWLR (Pt. 179) 340.

 

He submitted that a transaction covering land like this, must be in writing. Oral evidence to vary the written document is therefore inadmissible. He referred to the following cases

 

Anderson v. Graves (1975) L.R. 10 Ex. 234.

Vezey v. Rashleigh (1904) 1 ch. 634.

Akintola v. Solano (1986) 2 NWLR (Pt. 24) 598.

 

The fourth reason is that the appellant relied on the statute of fraud. He observed that the respondent did not deny or join issue with the appellant on the matter. He submitted that the respondent is deemed to have admitted it. The fifth reason is that the respondent in his evidence said that –

 

“At this stage the defendant introduced me to his tenants as the new owner of the house. The tenants then paid rents to me from the month of May 1991. I gave receipt to the tenants. One welder is one of the tenants”.

 

It is the view of the learned counsel that with the evidence, the learned trial Judge should not have granted the relief for –

 

“A perpetual injunction restraining the defendant and his agent assigns, or privies from entering or living in the house and from collecting rent on the house AND to refund the money so collected from April 1991 on the house lying and being situate at opposite Vehicle Training Inspection Office (behind Federal Housing Estate) Kulende, Ilorin Kwara State”.

 

He urged the court to resolve the issue in favour of the appellant.

 

In his reply, Adeseko Esq, of counsel, submitted that there is an ample oral and documentary evidence before the trial court upon which it based its judgment. In the learned counsel’s view the judgment was not based on the deed of transfer which that court had earlier rejected. The learned counsel further submitted that where there is a contract which is purported to be fully expressed in writing, proof may be given of a prior or contemporaneous oral agreement or warranty that forms part of the consideration of the said contract which is not inconsistent with the written agreement. He cited the case of Savannah Bank v. Salami (1996) 9 – 10 MAC 159 at 160. The learned counsel contended that as there is evidence that the respondent paid the purchase price of the building, there is a valid sale under the native law and custom. He cited the following cases –

 

Okonkwo AND Ors. v. Okolo AND Ors. (1988) 5 SCNJ 128.

Alhaji A. Olagunji v. Alhaji B. 0. Raji (1988) NWLR (Part 42) 408.

 

The learned counsel referred to the provisions of Order 25 of the High Court (Civil Procedure Rules) Kwara State and submitted that where fraud is made an issue in a civil suit it must be specifically pleaded. He observed that the appellant did not specifically plead the statute of fraud. That notwithstanding, the learned trial Judge considered the issue of fraud in his judgment. He observed that if there was fraud in the transaction between the appellant and the respondent

 

(1)     the draft agreement would not have been prepared in the chambers of the appellant’s counsel – Ibukun Olu chambers.

 

(2)     a counsel from Ibukun Olu chambers would not have confirmed the sale before the lower court.

 

(3)     the appellant would not have introduced the respondent to the tenants as the new land lord.

 

The learned counsel further observed that the claim that the appellant was blind at the time of the sale was denied by the specialist doctor who attended to the appellant. The learned counsel reminded the court that the doctor was the appellant’s witness. It is his view that his evidence was a solemn admission in favour of the respondent’s case. He cited the following cases-

 

Adeyeye v. Ajiboye (1987) 7 S.C.N.J. 1

Aboyeji v. Momoh AND Ors. (1994) 45 SCNJ 302

 

Finally, the learned counsel submitted that the learned trial Judge adequately reviewed the evidence before him and arrived at the correct conclusion. He urged the court to resolve the issue in favour of the respondent.

 

I now deal with the point raised by the learned counsel in their briefs of argument. It is trite that a valid contract can exist only when there is a “consensus ad idem” i.e., when there is a meeting of mind of the parties showing that the parties are bound by a specific term. This meeting of mind is, expressed in the form of “an offer” and “an acceptance” of that offer. It is only where they exist that there is a valid contract.

 

In the present appeal, there is evidence which the court believed that on the 11th day of April, 1991, the respondent paid the appellant the sum of N60,000.00 for the purchase of the house in dispute. PW4 of Ibukun Olu chambers prepared an agreement between the parties. The said agreement was read and explained to the parties before they and their witnesses signed/thumb printed same. From the above facts, it is evident that there is an offer to sell the house in dispute and an acceptance of that offer.

 

Generally, a contract may be oral i.e., (by parol) or in writing. There are however some contracts which the law mandatorily imposes a written requirement for the enforceability of such contracts. One of such contracts is a contract for the sale of land.

 

As has been mentioned earlier in this judgment, certain documents were tendered as exhibits in the lower court. Those documents tendered as exhibits that are relevant to this appeal are-

 

(a)     Exhibit 1 –   Savings bank deposit teller which shows that the appellant paid the sum of N58,000 into his account on 12th April, 1991.

 

(b)     Exhibit 4 –   a receipt issued to a tenant in the house in dispute by the respondent

 

(c)     Exhibits 3 AND 6 –          letters written by the appellant withdrawing the sale.

 

I have mentioned earlier that the law requires the evidence of a transaction in a sale of land to be in a note or a memorandum. It is necessary to mention also that no special form is prescribed for the note or memorandum. However from the authority of decided cases particularly from the decision in Hamilton v. Kofi Mensah (1937) 3 WACA 224 a document that will satisfy the description of a note or memorandum within the meaning of the statutory provision must contain the following details –

 

(1)     names of the parties or enough description of the parties.

 

(2)     the ample description of the subject matter of the contract.

 

(3)     the consideration for the alleged contract and

 

(4)     the document must contain the signature of the party to be charged or that of his agent or a representative duly authorised by him.

 

A careful look at the above exhibits shows that they do not fall within the description of a note or a memorandum as required by law but this is not all there is to it.

 

It is to be noted that one of the reliefs sought by the respondent in the lower court is for an order of specific performance. It is trite that in order for an action to be brought for the specific performance of a contract for the sale of land or any interest in land there must be a written memorandum of the contract signed by the defendant or by his duly authorized agent. It is observed however that in certain circumstances a court may enforce an agreement caught by the above statutory provision notwithstanding that there is no note or memorandum in support of such agreement. This exception however applies within certain defined limits. Our courts have accepted that notwithstanding that there is no note or memorandum the doctrine of part performance will operate in favour of the party seeking specific performance of a contract made in contravention of the statutory provision requiring written memorandum if the following conditions are satisfied-

 

1. there must be proper oral evidence to prove or establish the terms of the contract.

 

2. the contract must be specifically enforceable in other words it must not be a contract of personal service and the like.

 

3. for any act to suffice as part performance it must be unequivocally, and in its own nature referable to some such agreement as that alleged. It is however enough if the act is such as prove the existence of some contract and is consistent with the contract alleged.

 

4. If the plaintiff has wholly or in part executed his part of parol agreement in the confidence that the defendant would do the same. This is doctrine of part performance.

 

A careful look at the evidence before the lower court shows –

 

1. There is oral evidence to establish that the appellant offered to sell the house in dispute for N60,000. The respondent accepted the offer.

 

2. The agreement between the appellant and the respondent is enforceable in the sense that it is not a contract of personal service.

 

3. The respondent was introduced to the tenants as the new land lord. He took possession of the property and carried out some repairs. He even collected rents from the tenants for some time.

 

4. The respondent discharged his own part of the contract fully i. e., by paying the purchase price.

 

From the above facts, it is clear that there is evidence that the conditions enumerated above were satisfied. It follows that the order of the lower court for the specific performance of the contract between appellant and the respondent was in order despite the absence of a note or a written memorandum.

 

I observe that the respondent gave evidence that –

 

“I collected rents on the house from May to August 1991”.

 

This is an evidence against his interest. The learned trial Judge was therefore wrong in ordering the appellant “to refund the money so collected from April 1991”. The refund should have been from September 1991 in view of the evidence. Finally, I refer to the issue of fraud raised by the appellant. It is trite law that where fraud is alleged it must be specifically pleaded and the particulars of the fraud given in order to enable the party defending the allegation to understand the case he is facing and thereby prepare his defence. Highgrade Maritime Services Ltd v. First Bank of Nigeria Ltd (1991) 1 NWLR (Pt. 167) defence, the lower court could not go further to consider the issue of fraud because it would have been an exercise in futility which a court cannot afford.

 

The learned trial Judge inspite of the fact that fraud was not specifically pleaded in the statement of defence considered it in his judgment. He came to the conclusion, quite rightly, in my view, that “The issue of fraud has not been specifically proved”

 

Subject to the above amendment, issue one is resolved in favour of the respondent. On issue 2, Gbadeyan Esq, of counsel referred to the case of Laguro v. Toku (1992) 2 NWLR (Pt. 223) 278 and enumerated the principles guiding amendments of pleadings generally. He observed that amendments are more easily granted whenever the grant does not necessitate the calling of additional evidence or the changing of the character of the case. He cited a number of cases including –

 

Wiri v.Wuche (1980) 1 – 2 S.C. 12

Afolabi v. Adekunle (1983) 2. S. C. N. L. R. 141

Akoh v. Abuh (1983) 3 NWLR (Pt 85) 696.

 

The learned counsel conceded that the respondent sought to amend his writ of summons and statement of claim after he had closed his case. All his witnesses had testified. He contended that with the rejection by the lower court of the deed of conveyance, that court should not have allowed him to amend his reliefs to include a claim for specific performance. He submitted that the amendment occasioned a miscarriage of justice. It is his view that the amendment was wrongly granted. He urged the court to resolve issue 2 in the favour of the appellant.

 

In his reply, Adesoke Esq, of counsel submitted that an amendment can be made at any stage even before judgment is delivered once it is shown that it cannot prejudice the other party and it is in the interest of justice to do so. He referred to the case of Ojah AND Ors. v. Obgani AND Ors. (1976) 1 NMLR 95. In his view the lower court was right in granting the amendment. He urged the court to resolve the issue in favour of the respondent.

 

It is common ground that the respondent had closed his case before he applied for the amendment. He did not ask for leave to recall any witness or to tender any document. The amendment in my view is therefore to prevent the manifest justice of the case from being defeated. It has been accepted that courts may allow all amendments that are required for the purpose of using already available evidence and finding of fact of a trial court. Daiyi Horsfall AND Ors v. Nume Victor West (1999) 4 NWLR (Pt 597) page 120. The amendment therefore in my view, is in order. I resolve the issue in favour of the respondent.

 

On the whole, I find no merit in this appeal. Subject to the appellant starting the refund of rents collected by him from September, 1991 the appeal fails. I award against the appellant as cost N10,000.00 in favour of the respondent.

 

MURITALA AREMU OKUNOLA, JCA.:I have had the benefit of reading in draft the leading judgment just delivered by my learned brother Amaizu JCA. I agree with his reasoning and conclusion that the appeal is devoid of merit and should be dismissed.

 

I also dismiss the appeal and abide by the consequential orders made in the leading judgment including the order as to costs.

 

WALTER SAMUEL NKANU ONNOGHEN, J.C.A.:I have had the opportunity of reading in draft the lead judgment of my learned brother Amaizu, J.C.A. I agree with his reasoning and conclusion that there are no merits in this appeal.

 

The facts of the case have been reproduced in the lead judgment of my learned brother I do not intend to repeat them here except as needed to bring out clearly the point of law being discussed. I intend to comment on the primary issue in this appeal which is; in my view; whether the fact that the deed of transfer was rejected in evidence precludes the trial court from relying on any other legally admissible evidence on record to decree specific performance as it did in this case.

 

There is much evidence on record to confirm the sale of the appellant’s house by the appellant to the respondent. There is the evidence in exhibit 1 which shows that the purchase money was deposited by the appellant in his bank account. Exhibit 6 and 6a which were written by the appellant show that he admitted the sale of the property. Also there is the fact that after the sale the appellant put the respondent in possession and even introduced the respondent to the tenants in the property as their new landlord as evidenced in the rent receipt – exhibit 4. There is also the evidence that consequent upon his being let into possession the respondent carried out renovations in the property including building another floor etc only for the appellant to latter on resile from the agreement between the parties by refusing to give full possession to the respondent.

 

From the totality of the evidence it is clear that the respondent did perform his part of the agreement between the parties while the appellant refused to perform his part. It is trite law that a person who seeks to enforce his right under a contractual agreement must show that he has fulfilled all the conditions precedent and that he has performed all those terms which ought to have been performed by him. Therefore in an action for specific performance the plaintiff must fail if there is a default on his part to discharge his own obligations under the contract – see Balogun v. Alli-Owe (2000) 3 NWLR (pt.649) 478 at 482. Ezenwa v. Ekong (1999) 11 NWLR (Pt.625) 55 at 73 – 74.

 

That apart, it is the law that when a purchaser of land or a leasee is in possession of the land by virtue of a registrable instrument which has not been registered and has paid the purchase money or the rent to the vendor or the leasor, then in either case the purchaser, or the leasee has acquired an equitable interest. That being the law a registerable instrument which has not been registered is admissible to support a claim for specific performance or to prove such equitable interest and to prove payment of purchase money or rent. In the present case, the instrument was wrongly rejected in evidence by the learned trial Judge and there is no appeal on it. That notwithstanding, there is enough evidence both oral and documentary to establish the existence of an agreement between the parties. The respondent has religiously performance his part of the agreement and is suing for specific performance – see Fakoya v. St. Paul’s Church, Shagamu (1966) 1 All NLR 74: Okoye v. Dumez Nig. Ltd. (1985) 1 NWLR (Pt.4) 783; Ogunbambi v. Abowaba (1951) 13 WACA 222, Oni v. Arimoro (1973) 3 S.C. 163.

 

I also want to point out that the basis of the application of the doctrine of part performance is that when one of two contracting parties has been induced or allowed by the other to alter his position on the faith of the contract, as for instance by taking possession of land, and expending money in building or other like acts, there would be a fraud in the other party to set up the legal invalidity of the contract on the faith of which he induced or allowed the person contracting with him to act and expend his money – see Int. Textile Ind. (Nig) Ltd. v. Aderemi (1999) 8 NWLR (Pt.614) 268 at 297 – 298.

 

For these and other reasons stated in the lead judgment of Amaizu JCA. I also dismiss the appeal and abide by the consequential orders made therein including the order on costs.

Appeal dismissed.

 

Cases referred to in the judgment

Aboyeji v. Momoh (1994) 45 SCNJ 302.

Adegbite v. Ogunfaolu (1990) 4 N.W.L.R. (Pt. 146) 578.

Adenuga v. Lagos Town Council (1950) 13 WACA 125.

Adeyeye v. Ajiboye (1987) 7 S.C.N.J. 1.

Afolabi v. Adekunle (1983) 2. S. C. N. L. R. 141.

Akintola v. Solano (1986) 2 NWLR (Pt. 24) 598.

Akoh v. Abuh (1988) 3 NWLR (Pt 85) 696.

Akpasubi v. Unweni (1982) All N.L.R. 322.

Alli v. Ikusebiala (1985) 1 N.W.L.R. (Pt. 4) 630.

Anderson v. Graves (1975) L.R. 10 Ex. 234.

Balogun v. Alli-Owe (2000) 3 NWLR (pt.649) 478.

Ezenwa v. Ekong (1999) 11 NWLR (Pt.625) 55.

Fakoya v. St. Paul’s Church, Shagamu (1966) 1 All NLR 74.

Hamilton v. Mensah (1937) 3 WACA 224.

Highgrade Maritime Services Ltd v. FBN Ltd (1991) 1 NWLR (Pt.167) 290.

Horsfall v. West (1999) 4 NWLR (Pt 597) 120.

Int. Textile Ind. (Nig) Ltd. v. Aderemi (1999) 8 NWLR (Pt.614) 268.

Laguro v. Toku (1992) 2 NWLR (Pt. 223) 278.

NITEL Plc v. Rockonoh Properties Co. Ltd. (1995) 2 NWLR (Pt. 378)

Ogunbambi v. Abowaba (1951) 13 WACA 222.

Ojah v. Obgani (1976) 1 NMLR 95.

Okeya Trading Co. v. A.G. Kwara State (1992) 7 N.W.L.R (Pt. 254) 412.

Okonkwo v. Okolo (1988) 5 SCNJ 128.

Okoye v. Dumez Nig. Ltd. (1985) 1 NWLR (Pt.4) 783.

Okubule v. Oyagbola (1990) 4 NWLR (Pt. 147) 723.

Olagunji v Raji (1988) NWLR (Pt 42) 408.

Oni v. Arimoro (1973) 3 S.C. 163.

Otanioku v. Alli (1977) 11 – 12 S.C. 9.

Romaine v. Romaine (1992) 4 N.W.L.R (Pt. 238) 650.

Sajere v. Iretor (1991) 3 NWLR (Pt. 179) 340.

Savannah Bank v. Salami (1996) 9 – 10 MAC 159.

Vezey v. Rashleigh (1904) 1 CH. 634.

Wiri v. Wuche (1980) 1 – 2 S.C. 12.

Statute referred to in the judgment

Evidence Act; section 13(1)

Rules of court referred to in judgment

Court of Appeal Rules; order 6 rule 2.

High Court (Civil Procedure) Rules Kwara State; order 25.