➥ CASE SUMMARY OF:
Asimowu Odusoga V Ricketts (1997) – SC
by “PipAr” Branham-Paul C. Chima.
Supreme Court – SC.57/1990
➥ JUDGEMENT DELIVERED ON:
Friday, July 4, 1997
➥ AREA(S) OF LAW
Sale by administratrix.
➥ PRINCIPLES OF LAW
⦿ FAILURE TO PAY FULL PURCHASE PRICE MEANS NO VALID SALE
For a sale under customary law, such as the sale to the plaintiff in 1965, this Court has in A.O. Odufuye v. Jacob Adeoye Fatoke (1977) 4 SC. 11, accepted the proposition of law that where the purchaser fails to pay the full purchase price there is no valid sale. This must be so, for to constitute a valid sale of land under customary law, three essential ingredients are required, viz: (i) Payment of the purchase price (ii) Purchaser is let into possession by the vendor (iii) In the presence of witnesses See: Aboyade Cole v. S.R.. Folami (1956) SCNLR 180; (1956) 1 FSC 66; Akingbade v. Elemosho (1964) 1 All NLR 154; Ogunbambi v. Abowaba, 13 WACA 222, 225. It follows, therefore, that where the purchase price is not fully paid there can be no valid sale, notwithstanding that the purchaser is in possession. — M.E. Ogundare, JSC.
⦿ PAYMENT OF PURCHASE PRICE GIVES THE PURCHASER AN EQUITABLE TITLE
Viewed even from the standpoint of the common law, payment of purchase price coupled with possession gives the purchaser an equitable title and he is entitled to seek an order of specific performance to compel the vendor to convey legal title to him. But where the purchaser price is not fully paid, the purchaser will have no right to enforce specific performance – see Hewe v. Smith (1884) 27 Ch D 89, a case relied on by the learned trial judge. — M.E. Ogundare, JSC.
⦿ IN CUSTOMARY LAW, PAYMENT OF PURCHASE PRICE PASSES TITLE
It is settled law that it is for a party to a contract to take all necessary precautions in order to avoid a bad bargain. See Owo v. Kasumu (1932) 11 NLR 116; the maxim is caveat emptor (let the buyer beware). It is the vendor’s duty, however, to disclose defects in his title. The law is that in a transaction of sale of land under customary law, once there is payment of the purchase price of the land to the purchaser in the presence of witnesses, title in the land passes to the purchaser. See Ogunbambi v. Abowaba 13 WACA. 222; Cole v. Folami (1956) SCNLR 180; (1956)1 FSC 66 and Ashaye v. Akerele (1968) NMLR. 190. 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 950pounds with a balance of 250pounds left unpaid. The attributes of a void 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. — Onu, JSC.
➥ LEAD JUDGEMENT DELIVERED BY:
M.E. Ogundare, J.S.C.
⦿ FOR THE APPELLANT
⦿ FOR THE RESPONDENT
Chief D.K Solesi.
➥ CASE FACT/HISTORY
The land in dispute is a portion of the land (4 plots) sold by the administrators of the estate of Babatunde Jemi-Alade deceased in 1965 to the plaintiff. Mr. Ricketts paid part of the purchase price to the vendors but failed to pay the balance. He went into possession and surveyed the land, (the entire 4 plots). He however developed only a part of it leaving the part now in dispute undeveloped. He built on the portion of the land developed by him but left the undeveloped part vacant. He bought the 4 plots of and for 950.00pounds (nine hundred and fifty pounds) but made a part payment of 700.00 (seven hundred pounds) for which he was given a receipt. This was in 1965. He did not pay the balance of the purchase price despite repeated demands from the vendors.
The appellants are defendants in an action instituted by L.L. Ricketts now deceased. Ricketts claimed: (i) a declaration that the plaintiff is the beneficial owner of the property situate lying and being at Thomas Drive and forming part of a larger area of land covered by a deed of conveyance registered as No.9 at page 9 in volume 1547 of the Lands Registry, Lagos and that the plaintiff is entitled to a certificate of occupancy of the same property (hereinafter called ‘the land in dispute); (ii) N1,000.00 damages for trespass committed by the defendants, servants and agents on the said piece or parcel of land on or about the 29th day of April, 1980. (iii) Perpetual injunction restraining the defendants, servants and/or agents from further acts of trespass on the land in dispute.”
At the conclusion of trial and after addresses by learned counsel for the parties, the learned trial judge (Hotonu J.) in a reserved judgment, found that the plaintiff was in possession of the land in dispute at the time that the defendants came on it to build. He also found that although the plaintiff paid a part of the purchase price in 1965 he did not pay the balance of the purchase price of the land sold to him, until 1976. He found also that the land in dispute was conveyed to the 1st defendant in April 1972 by Mrs. Ebun Bucknor the sole administratrix of the estate of Jemi-Alade family. The learned trial judge also found that the deed of conveyance executed in favour of the plaintiff in 1976 by Mrs. Ebun Bucknor after the plaintiff paid the balance of the purchase price was ineffective to pass the title to the land in dispute to the plaintiff in that by the earlier conveyance in 1972 in favour of the 1st defendant the estate of Jemi-Alade had divested itself of any title to the land in dispute that could be passed to the plaintiff. He finally found that the 1st defendant had better title to the land in dispute and consequently dismissed the plaintiff’s claims in toto.
Being dissatisfied, the plaintiff (Mr. Ricketts) appealed successfully to the Court of Appeal. The Court below allowed the plaintiff’s appeal, set aside the judgment of the trial High Court and entered judgment in favour of the plaintiff on the three reliefs sought by him. The defendants were, quite naturally, unhappy with this judgment and have now appealed to this court.
➥ ISSUE(S) & RESOLUTION(S)
I. Whether the plaintiff acquired title to the 4 plots of land sold to him in 1965 by the administrator and administratrix of the estate of Jemi-Alade deceased the previous owner of the land in dispute notwithstanding that the plaintiff did not at the time pay the full purchase price to his vendors?
RULING: IN APPELLANT’S FAVOUR.
A. THAT THE PLAINTIFF HAD NOT PAID THE FULL PURCHASE PRICE, AND WAS THUS NOT ENTITLED TO SPECIFIC PERFORMANCE
“The factual situation here is that plaintiff did not fully pay for the land he bought from the family of Jemi-Alade in 1965 and the family in 1972 resold the undeveloped part of it to the 1st defendant, after repeated demands made to the plaintiff to pay had yielded no results. On the authorities, there was neither a valid sale in 1965 under customary law nor had the plaintiff in 1972 equitable title to the land under the Common Law, such as would entitle him to a decree of specific performance. The question of whether what was paid was a deposit or part-payment only becomes relevant when determining the right of the purchaser to a refund of what he had paid. That issue does not arise in this case. The administratrix of Jemi Alade was entitled to sell and convey the land in dispute to the 1st defendant/appellant in 1972, following the failure or the plaintiff to pay the balance of the purchase price, despite repeated demands.”
II. Whether Exhibit G, the deed of conveyance in favour of the 1st defendant/appellant is valid?
RULING: IN APPELLANT’S FAVOUR.
A. THAT THE SOLE SURVIVING ADMINISTRATRIX EXECUTED THE DEED VALIDLY
“With profound respect to their Lordships of the Court below, I think they were wrong in their view of Exhibit G. Mrs. Ebun Olajumoke Bucknor executed Exhibit G not as a beneficiary but in her capacity as the sale surviving administratrix of the estate of Babatunde Jemi-Alade, deceased. As the legal estate to the land in dispute was then in her, she could validly alone execute the deed of conveyance in favour of the 1st defendant/appellant. The fact that two beneficiaries of the estate joined in executing Exhibit G would not make the deed void or ineffective to pass title to the 1st defendant. Their executing the deed was superfluous and unnecessary.”
“Since they had no title to the land, there was nothing they could pass to the purchaser. Had Mrs. Bucknor executed the deed in any capacity other than as administratrix of the estate of Jemi-Alade, such as the capacity in which the other two joined, a different situation would have arisen and I would not then have hesitated in agreeing with the Court below that Exhibit G was valueless. Title to the land was, by virtue of the deed of conveyance dated the 21st day of August, 1964 and recited in Exhibits B and G, vested, not in the beneficiaries but in the personal representatives of the deceased Jemi-Alade and only they or the sole survivor of them could pass title to a third party. As Mrs. Ebun Bucknor executed Exhibit Gin her capacity as the administratrix of the estate I hold that Exhibit G was validly made and was from common source as Exhibit B. Being prior in time to Exhibit B, Exhibit G took priority over Exhibit B, as, rightly in my view, was decided by the learned trial judge. This conclusion disposes of the subsidiary question arising for determination in this appeal.”
“The conclusion I reach is that this appeal succeeds and it is hereby allowed. The judgment of the Court of Appeal is set aside together with the order for costs made therein. In its stead I restore the judgment of the trial High Court dismissing plaintiff’s claims. The defendants/appellants are entitled to the costs of this appeal and of the appeal in the Court below which I assess at N1,000.00 and N750.00 respectively.”
➥ MISCELLANEOUS POINTS
➥ REFERENCED (STATUTE)
➥ REFERENCED (CASE)
➥ REFERENCED (OTHERS)