⦿ CASE SUMMARY OF:
Ohiaeri v. Yusuf (2003) – CA
by PipAr Chima
⦿ LITE HOLDING
It is the law that where a purchaser of land has paid the purchase price to the vendor, the position is that he has acquired an equitable interest in that land. – Ogebe JCA. Ohiaeri v. Yusuf (2003)
Principle of severance.
(2003) JELR 71230 (CA)
Court of Appeal
⦿ LEAD JUDGEMENT DELIVERED BY:
* FOR THE APPELLANT
* FOR THE RESPONDENT
⦿ CASE HISTORY
The plaintiffs/respondents sued the appellant and four others in the High Court of Lagos seeking the following declarations, among others:
A declaration that the agreement made sometime in 1982 between the 2nd plaintiff and the 1st and 2nd defendants for the assignment of the unexpired residue of the leasehold interest in the property known as Plot 1164, Saka Tinubu Street, Victoria Island, Lagos covered by certificate of occupancy issued on 10th February, 1983 and registered as No. 84 page 84 in Volume 1982L at the Lagos State of Nigeria Land Registry is valid and subsisting and binding between the parties.
A further declaration that any purported sale, transfer assignment and or lease of the said property in favour of the 3rd defendant or any other person is null, void and of no effect whatsoever.
Judgment was delivered on the 23rd December, 1999 in favour of the plaintiffs/respondents. The appellant was dissatisfied with the judgment and appealed to this court.
1. Whether the plaintiffs/respondents established the creation of any legal, equitable or other interest in the disputed property in favour of either or both of them having particular regard to the contents and import of exhibit A.
2. Whether the lower court followed and applied the correct principles in ordering specific performance of the alleged agreement made between the 2nd plaintiff/respondent and the 1st defendant/respondent for the assignment of the disputed property to the plaintiffs/ respondents.
3. Whether the prohibited payments of part of the consideration in the alleged contract for the sale and purchase of the disputed property (under the Exchange Control Act, Cap. 113 and the Exchange Control (Anti Sabotage) Act, Cap. 144, Laws of the Federation of Nigeria) which were admittedly made by the plaintiffs/respondents did not vitiate the alleged contract and render same unenforceable.
⦿ RESOLUTION OF ISSUE(S)
1. ISSUE 1 WAS RESOLVED AGAINST THE APPELLANT BUT IN FAVOUR OF THE RESPONDENT.
i. I have given serious consideration to the arguments by both counsel and I have taken a look of exhibit A. It is my view that exhibit A is not a conveyance but it constitutes evidence of receipt of money by the 3rd respondent in this appeal in order to sell the disputed property to the plaintiffs/respondents.
ii. It should be noted that both the 3rd and 4th respondents who could have challenged the case of the plaintiffs/respondents deliberately refrained from doing so in the court below. The appellant who was a total stranger to the transaction between the plaintiffs/ respondents and Ibekwe family in 1982 is not in a position to seriously dispute what has happened between them.
2. ISSUE 2 WAS RESOLVED AGAINST THE APPELLANT BUT IN FAVOUR OF THE RESPONDENT.
i. The learned counsel for plaintiffs/respondents submitted that specific performance being an equitable remedy should not be ordered where damages will be adequate to meet the justice of the case. This general rule however does not apply to breach of contract for sale of land. For in such a case it is now settled that damages cannot be adequate remedy and purchaser is entitled to specific performance of the contract. I uphold this submission of the learned counsel. It is clear that the Ibekwe family headed by the 3rd respondent had agreed to sell the property to the plaintiff/respondent and received monetary consideration. As a result that contract is capable of specific performance.
3. ISSUE 3 WAS RESOLVED AGAINST THE APPELLANT BUT IN FAVOUR OF THE RESPONDENT.
i. It is not disputed that four hundred and eighty-one thousand Naira of the purchase price was paid in Naira while some dollars and pounds were paid in United Kingdom for the education of Justice Dan Ibekwe’s children abroad. There was evidence that the 1st plaintiff/respondent resided in England and if payment of some of the money was made in England from resources he earned there, it could not contravene the Exchange Control Act of Nigeria. In any event, if the payment in Pounds is voided it will still not affect the transaction because the bulk of the payment was in Nigeria and I will apply the principle of severance to separate the payment in Pounds from the payment in Naira on the principle of Adesanya v. Otuewu (supra) and the case Rivway Lines Ltd. v. Rhein Mas Und See and Anor. (1993) 7 NWLR (Pt.308) 692.
⦿ ENDING NOTE BY LEAD JUSTICE – Per
⦿ CONTRIBUTIONS OF OTHER JUSTICES TO ISSUE(S)
⦿ REFERENCED (STATUTE)
⦿ REFERENCED (CASE)
⦿ REFERENCED (OTHERS)
⦿ NOTABLE DICTA
The learned counsel for the plaintiffs/respondents objected to the brief filed by the 1st defendant/respondent on the ground that she did not file an appeal against the judgment of the lower court and she cannot be heard in her brief to support the appellant.
In reply the learned counsel for the 1st defendant/respondent submitted that he was at liberty to argue the appeal as long as he does not go outside the grounds of appeal filed by the appellant.
It should be noted that the 1st defendant/respondent did not defend the suit in the lower court. She also did not appeal against the judgment of the lower court. It will therefore be outrageous to allow her to argue her brief in favour of the appellant before this court. The whole case revolved on her in the lower court. She chose to do nothing before that court and did not appeal against the judgment of the lower court. The implication is that she is satisfied with the judgment of the lower court and cannot be allowed to argue the contrary in this court. The brief filed on her behalf is hereby discountenanced and struck out. – Ogebe JCA. Ohiaeri v. Yusuf (2003)
⦿ SIMILAR JUDGEMENTS