⦿ CASE SUMMARY OF:
Alhaji Yusuf Adeniran v. Alhaji Azeez Layi Olagunju (2001) – CA
by PipAr Chima
⦿ LITE HOLDING
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 some elements must be in the note.
Alhaji Yusuf Adeniran
Alhaji Azeez Layi Olagunju
(2001) JELR 39779 (CA)
Court of Appeal
⦿ LEAD JUDGEMENT DELIVERED BY:
Patrick Ibe Amaizu, J.C.A.
- FOR THE APPELLANT
- Gbadeyan Esq.
- FOR THE RESPONDENT
- Adeseko Esq.
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.
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.
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”.
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.
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.
*** PRELIMINARY OBJECTION
“Take Notice that the respondent shall at the hearing of this appeal rely on the following preliminary objections:
- The appellant’s brief dated 29th December, 1999, and filed on the same date is incompetent same not being filed within time.
- 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”.
- 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.
- Whether the leave granted the plaintiff to amend his writ of summons and the amended statement of claim was proper in law.
⦿ RESOLUTION OF ISSUE(S)
[PRELIMINARY OBJECTION: DISMISSED]
The preliminary objection was dismissed. The reason why the preliminary objection should be dismissed.
The appellant filed before this court a motion on notice praying the court 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 in favour 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.
[MAIN APPEAL: ALLOWED]
- ISSUE 1 IS RESOLVED AGAINST THE APPELLANT BUT IN FAVOUR OF THE RESPONDENT.
i. 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.
ii. 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 landlord. 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.
- FOR ISSUE 2, THE COURT HELD 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) 120. The amendment therefore in my view, is in order. I resolve the issue in favour of the respondent.
⦿ ENDING NOTE BY LEAD JUSTICE – Per
⦿ CONTRIBUTIONS OF OTHER JUSTICES TO ISSUE(S)
⦿ REFERENCED (STATUTE)
Section 4 Statute of Frauds.
⦿ REFERENCED (CASE)
Akpasubi v. Umweni (1982) All N.L.R. 306 at 308 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”.
⦿ REFERENCED (OTHERS)
⦿ NOTABLE DICTA
It is very elementary that no court acts on presumption. It acts on hard facts. – Amaizu, J.C.A. Adeniran v. Olagunju (2001)
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. – Amaizu, J.C.A. Adeniran v. Olagunju (2001)
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. – Amaizu, J.C.A. Adeniran v. Olagunju (2001)
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. – Amaizu, J.C.A. Adeniran v. Olagunju (2001)
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. – Amaizu, J.C.A. Adeniran v. Olagunju (2001)
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. – Amaizu, J.C.A. Adeniran v. Olagunju (2001)
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. Textile Ind. (Nig.) Ltd. v. Aderemi (1999) 8 NWLR (Pt.614) 268 at 297 298. – Onnoghen, J.C.A. Adeniran v. Olagunju (2001)
⦿ SIMILAR JUDGEMENTS
Hamilton v. Kofi Mensah (1937) 3 WACA 224