➥ CASE SUMMARY OF:
Abdu Manya v. Alhaji Iliyasu Idris (2000) – CA
by “PipAr” Branham-Paul C. Chima.
Court of Appeal – CA/K/29/97
➥ JUDGEMENT DELIVERED ON:
Tuesday, the 14th day of March, 2000
➥ AREA(S) OF LAW
Failure of consideration.
➥ PRINCIPLES OF LAW
⦿ THE STATUTE OF FRAUDS WILL NOT BE USED AS AN ENGINE OF FRAUD FOR WANT OF WRITING
He is bound by his bond, notwithstanding that the transaction is not evidenced in writing. Generally, section 4 of the Statute of Frauds requires that a transaction dealing with interest in land should be by a note or memorandum in writing. On the application of the Statute of Frauds, the Full Court of Divisional Court of Nigeria refused to lay it down as a strict rule of law that land, the property of an illiterate native, cannot be disposed of by him without complying with statute. See Bintu Alake and Ashafa Lawal v. Awawu 11 NLR 39,40 and Ashabi Okoleji v. M.A. Okupe 15 NLR 28. The parties to the instant appeal, as can be garnered from the record of proceedings are illiterates and on those authorities, the fact that the transaction is not in writing is not prejudicial. — Salami, JCA.
⦿ FACTORS FOR A VALID SALE UNDER NATIVE LAW & CUSTOM
The rules of law governing sale of land under the customary law are clear, unambiguous and no longer require restatement. But for avoidance of doubt or convenience, they are reiterated herein. Before there can be a valid sale of land under native law and custom, the three elements or requirements are (a) payment of purchase price; (b) the purchaser is put in possession by the vendor (c) in the presence of witnesses: Cole v. Folami (1956) I FSC 66; (1956) SCNLR 180, Ogunbambi v. Abowab (1951) 13 WACA 222, 225 and Akingbade v. Elemosho (1964) 1 All NLR 154. — Salami, JCA.
➥ LEAD JUDGEMENT DELIVERED BY:
⦿ FOR THE APPELLANT
⦿ FOR THE RESPONDENT
➥ CASE FACT/HISTORY
The Appellant was a tenant of the Respondent in respect of a premises held by the Appellant as a deemed holder of statutory right of occupancy at Unguwa Uku, Kano. During the subsistence of the tenancy, in or about 1990, the Respondent offered for sale and the Appellant agreed to buy the property for N16,000.00. The appellant made a part payment of N14,000 and promised to pay the balance of N2,000.00 within 10 days. At the expiration of the 10 days, the Appellant failed to make good his undertaking and demanded for extension of time which was granted. The default persisted, inspite of several demands, for a period of 36 months. The Appellant eventually asked for refund of his N14,000.00 which he refused to collect when the respondent produced the money.
The Respondent sought the intervention of the wardbead whose intervention did not achieve amicable settlement. The Respondent had to resort to litigation by suing at Waje Area Court, Kano for an order formally setting aside the transaction and ordering the Appellant to accept his deposit or part payment of N14,000.00. The Court ordered the deposit of the money during the pendency of the case. The case was decided against the Appellant who was thereby aggrieved by the decision of the Court and appealed against it to the Upper Area Court, Kano but not after he had taken his money placed on deposit in the Court. The Upper Area Court heard, allowed the appeal and ordered a retrial which was stalled by an order of prohibition restraining the Court from rehearing the case, on the ground of exceeding its jurisdiction, by entertaining a matter pertaining to title to land situate and lying in an urban area, a matter that is exclusively reserved to the High Court. Consequently, the Respondent brought the action resulting in the instant appeal before the High Court claiming the restoration of his title on the ground of failure.
This is an appeal against the decision of Tani Yusuf Hassan, J., of the Kano State High Court of Justice, sitting in Kano, in suit No. K/402/94 delivered on the 5th December, 1996, in an action brought by the Respondent, as the Plaintiff against the Appellant, as Defendant, claiming five declaratory reliefs and damages for trespass. Pleadings were filed, exchanged and settled at statements of claim and defence. The plaintiff testified on behalf of himself and called two other witnesses. On the other hand, the defendant testified and called four other persons as witnesses for defence. Learned Counsel for the respective parties addressed the Court. The learned trial Judge, in a reserved and considered judgment, found that the consideration for the contract of sale of land between the parties had failed and granted the Respondent possession of the property in dispute in addition to an award of N20,000.00 damages for trespass. Dissatisfied with the judgment, the Appellant appealed to this Court.
➥ ISSUE(S) & RESOLUTION(S)
I. Whether a party to a contract of sale of land has a right to rescind a contract on account of breach of payment of a consideration at a time agreed for such payment and whether a consideration can be said to have failed on account of the failure of consideration, when the contract is finally rescinded?
RULING: IN RESPONDENT’S FAVOUR.
A. THAT THE APPELLANT FAILED TO PAY THE BALANCE OF THE PURCHASE PRICE
“Where purchaser of land made part payment of the purchase price but defaulted in paying the balance there can be no valid sale even where the purchaser is in possession: Odufuye v. Fatoke (1977) 4 SC 11. Such possession is incapable of defeating the vendor’s title. But where part payment of the purchase price of land is made and the purchaser paid up the balance within the prescribed or agreed time, or in the absence of stipulated time within a reasonable time, the vendor will not be entitled to resile from the contract of sale and if he does, he can be compelled by specific performance. The Appellant herein made a part-payment of the purchase price of land but refused to tender the balance inspite of several demands or extension of the stipulated time within which to pay the outstanding balance. The Appellant’s refusal to pay up the remaining purchase price is fatal to his acquisition of the land because he is not entitled to title to the property until the purchase price is fully paid notwithstanding his possession.”
B. THERE IS NO EVIDENCE THAT APPELLANT WAS LET INTO POSSESSION
“There is no evidence that the Appellant paid the purchase price fully nor was there evidence led showing he was formally let into possession as the purchaser of the property in the presence of witnesses, apart from the possession into which he was put as a tenant. The possession Appellant acquired as a tenant in my respectful opinion, does not qualify him to the legal estate. It is clear that, he has not satisfied any of the three elements or ingredients of acquisition of valid legal title under native law and custom. The Appellant’s part payment of the purchase price to the Respondent, the vendor, without paying the remaining N2,000.00 is equally not sufficient to vest him with any interest in the land in dispute. The Appellant has by his conduct failed to acquire valid legal estate to the property. His interest or status in respect of the property was not higher or better than his tenancy which cannot defeat Respondent’s legal estate or title, especially so when he had accepted the refund of part-payment he made: Oloto v. Administrator-General (1946) 12 WACA 76 and Odufuye v. Fatoke (supra) and Odusoga v. Ricketts (1997) 7 NWLR (pt.511) 1 at 21.”
C. THAT RESPONDENT SHOULD HAVE RESOLD WITHOUT VIA LITIGATION
“The Respondent herein who was incidentally the plaintiff, in the present case, since there was no valid sale under the customary law and the Defendant has no equitable title to the property under common law the respondent should have exercised his lien over the property and resell and convey the property to any other person who might be desirous of buying the premises. He does not have to resort to the expensive and long process of litigation to recover the land in dispute or the balance of the purchase price.”
II. Whether a party to a contract who fails to honour his promise to pay a consideration at a stipulated time can be said to be a trespasser on account of his occupation of the landed property which is the subject matter of sale?
RULING: IN RESPONDENT’S FAVOUR.
A. THAT APPELLANT BECAME A TRESPASSER THE MOMENT HE COULD NOT PAY THE BALANCE MONEY
“There is no merit in the submission of the learned Counsel for Appellant that, Appellant was not a trespasser until the sale was declared invalid and rescinded. A court decision resolves an existing dispute and does not create one. In other words, in a breach of contract case, such as the present one, there is accrual of cause of action at the time of the breach of the contract and not until damage is suffered. See Lawal v. Kukawa Local Government & Another (supra) (1991) 2 NWLR (Pt. 174) 379. The Respondent’s cause of action, in the instant appeal, accrued at the expiration of the time or such extended time within which to pay up the remaining purchase price of N2,000.00 and he failed to do so. At that time, his occupation of the property ceased and his continued possession thereafter became unlawful. It is therefore preposterous to contend that, the Respondent’s right to sue for trespass did not arise until the Appellant’s possession was declared invalid by the Court below. He was a trespasser from the date of accrual of cause of action, which position the Court merely declared in its judgment. It is trite that a trespasser’s possession is not a legitimate or legal possession: Da Costa v. Ikomi (1968) 1 All NLR 394, 398; Talabi v. Adeseye (1973) NMLR 8, 10; Badiru v.Ozoh (1986)4 NWLR(Pt. 38) 724 and Aromire v. Awoyemi (1972) 1 All NLR (Pt.1) 101, 103.”
B. THAT THE APPELLANT BECAME A TRESPASSER DESPITE HAVING LAWFULLY ENTERED EARLIER
“Since the Appellant defaulted in honouring his promise to pay his rent regularly or pay the balance of his purchase price fully, he abused the authority or position whereby his initial entry was lawful he became a trespasser ab initio. The lawful entrant becomes a trespasser and the act of trespass relate back to constitute the first entry to trespass.”
“Having decided the two issues in favour of the Respondent the appeal also fails and it is dismissed with costs which is assessed at N3,000.00 in favour of the Respondent.”
➥ MISCELLANEOUS POINTS
➥ REFERENCED (STATUTE)
➥ REFERENCED (CASE)
⦿ HAVING NOT PAID FULL PURCHASE PRICE AND NOT LET INTO POSSESSION
Odusoga v. Ricketts (1997) 7 NWLR (pt.511) 1 at 21 where Wali, J.S.C said:- “The fact that the Respondent made part-payment to the vendor, for which he obtained a receipt Exhibit ‘A’ did not pass the legal estate of the land in dispute to him. Where a purchaser, as in this case, paid only part of the purchase price of a parcel of land which was demarcated into plots before the sale, went into possession, developed substantial part of the land while leaving the rest bushy and undeveloped, the legal estate of the undeveloped part still remained with the vendor, particularly when the purchaser had failed to pay the balance of the purchase price after several repeated demands”.
Onu, J.S.C at page 25 of the same report observed thus: “In the instant case, no such customary sale did indeed take place, and the trial Court rightly so found. This is because, the Respondent did not pay the full price for the 4 plots of land he purported to purchase from the Appellants for 950 pounds with a balance of 250 pounds left unpaid. The attributes of a valid sale being therefore absent from the purported sale to the Respondent, title thereto not having passed, the Court below seriously erred, when it held that under customary law the legal representatives of Jemi-Alade, transferred the ownership of the land in dispute on the part payment of the purchase price thereof. A fortiori the court below also was in error when, it held that the execution in 1976 of Exhibit ‘B’ was a confirmation of the purported customary sale which took place in 1965…”
➥ REFERENCED (OTHERS)