➥ CASE SUMMARY OF:
Lasis Adetuyi V. Thomas Agbojo; Co-operative Bank (Nig.) Ltd. (1996) – CA
by “PipAr” Branham-Paul C. Chima.
➥ COURT:
Court of Appeal – CA/B/14/92
➥ JUDGEMENT DELIVERED ON:
Friday 28th June 1996
➥ AREA(S) OF LAW
Agreement to sale;
Sale of reversionary interest;
Specific performance;
Governor’s consent.
➥ PRINCIPLES OF LAW
⦿
➥ LEAD JUDGEMENT DELIVERED BY:
Atinuke Omobonike Ige, JSC
➥ APPEARANCES
⦿ FOR THE APPELLANT
⦿ FOR THE RESPONDENT
➥ CASE FACT/HISTORY
Upon a close scrutiny of the wordings of Exhibit C it is very clear that 1st respondent is the fee simple owner of the parcel of land and the hereditaments thereon situated at Idera Street Owode. Akure in Ondo State. He has mortgaged this same property together with its hereditaments to 2nd Respondent who by the way is no longer a party to this appeal because the appellant had withdrawn against the Bank on the day the appeal was heard.
In the court below the appellant as plaintiff sued the respondents as defendants for the following claims as per his writ of summons. Specific performance by the 1st defendant of the agreement dated 26th day of August, 1985 between the plaintiff and the 1st defendant for the sale and transfer to the plaintiff storey building on the piece or parcel of land situate and being at Idera Street, Akure Ondo State and conveyed to the 1st defendant in the Deed of Conveyance dated 14th March, 1973 and registered as No 43 at page 43 in Volume 1451 of the Lands Registry in the Office at Ibadan now kept at Akure. N500,000.00 as Special and General damages for breach of contract in lieu of or in addition to specific performance against the 1st defendant. An Order on the 1st and 2nd defendants to execute stamp and register a Deed of Release of the Deed of Legal Mortgage between the 1st and 2nd Defendants dated 13th February, 1975 and registered as No 21 at page 21 in Volume 1661 of the Lands Registry in the Office at Ibadan now kept at Akure.
On 3/12/90 the learned trial Judge in a reserved judgment dismissed the plaintiff’s claim as per his writ of summons.
➥ ISSUE(S) & RESOLUTION(S)
[APPEAL ALLOWED]
I. Whether Exhibit C was an outright sale or agreement to sell which sale is subject to the Governor’s consent?
RULING:
A. THAT THE SALE IS AN AGREEMENT TO SELL
“In view of the fact that 1st respondent had to do so many things under the law in order to deliver the said property to the appellant free from all encumbrances can one really say the sale was an outright sale? My answer is in the negative. It is my candid view that the sale as described in Exhibit C is a sale with many provisional Clauses. To me it is an agreement to sell the property including its hereditaments to the appellant after vendor 1st respondent shall have taken necessary legal steps to free the property from all present encumbrances. At the best what the 1st respondent was selling to the appellant at the time of executing Exhibit C was his reversionary interest in the property subject to the Mortgagee’s lien on the property.”
.
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II. Whether, the sale agreement is valid or null and void in view of the provisions of section 22 and 26 of the Land Use Act, 1978?
RULING: IN APPELLANT’S FAVOUR.
A. THAT PRIOR EXECUTION BEFORE GOVERNOR’S CONSENT IS NOT ILLEGAL
“It is my view that Exhibit C which is an agreement to sell respondents property is not illegal because there is nothing in the Land Use Act which prevents a prior execution of an agreement to sell before an approach is made to the Governor for his consent. I am in agreement with the view of my learned brother Salami JCA which he expressed in the case of Awojugbagbe Light Industries Ltd v Chinukwe (1993) 1 NWLR (pt 270) 485 In that case the appellant contended that the Deed of Mortgage was null and void by virtue of Section 22 of the Land Use Act because the Deed was executed before the Governors consent was obtained. The court of Appeal in the judgment held that the Deed was legal Salami JCA opined thus at pages 509 -510; ‘There is nothing in the Act preventing prior execution of an instrument before an approach is made to the Governor for his consent. So that the provision that the consent of the Governor must first be obtained means no more than that the agreement entered into will remain inchoate until the Governors consent is sought and obtained Consenting to a sublease mortgage transfer of possession prior to the earlier drawing up an agreement is analogous to buying a pig in the poke.’ I am in full agreement with the view expressed by my brother Salami JCA in the Awojugbagbes case (supra) more especially when the provisions of Section 22(1) of the Land Use Act 1978 is read along with the provisions of Section 22(2) of the same Act.”
B. GOVERNOR’S CONSENT IS ONLY REQUIRED TO MAKE THE TRANSACTION WHOLE
“In the instant case Exhibit C is a prior instrument (agreement) executed in evidence of the transfer of the respondents property to the appellant before the Governors consent is sought hence it is not illegal. The provisional clauses in Exhibit C have made it transparently clear that it is a conditional agreement which becomes effective after the condition of the Governors consent has been fulfilled. It is not illegal and the respondent whose duty it is to obtain the Governors consent would not be allowed to reply upon his wrongful act i.e. omitting or refusing to obtain the Governors consent so as to allege as against the appellant that Exhibit C is null and void. Respondent should not be allowed to benefit from his own wrongful act – Nollus commodium caprere potest de juria sua propria.”
.
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III. Whether the trial court was wrong in refusing to give approval to a void although not an illegal contract by not making an order for specific performance or warding damages?
RULING: IN APPELLANT’S FAVOUR.
A. THAT THE APPELLANT IS ENTITLED TO SPECIFIC PERFORMANCE
“I am of the view reinforced with the decision of the supreme court of in Awojugbagbe’s case (supra) that the appellant who has made part payment in pursuance to a valid agreement Exhibit C for alienation and transfer of Land is entitled to an order of specific performance and the learned trial Judge was wrong when he refused to grant the appellants claim for specific performance. It lies in the discretion of the court to order the 1st respondent to apply for the Governors consent. This discretion should be exercised in favour of the appellant by ordering the 1st respondent to apply for the Governor’s consent in favour of the appellant, and I shall do so. The appellant is yet to pay N20,000.00 to the 1st respondent as the balance of the purchase price.”
B. THAT THE APPELLANT, IN THE ALTERNATIVE, IS ENTITLED TO DAMAGES
“It is my view that the justice of this appeal will be met by granting the appellant an award of special and general Damages as an alternative to the order of specific performance in case the respondent fails to carry out the court order within the limited time.”
“I am of the view that this court is in good position to make inferences from evidence on record to enable it make proper findings and grant the appellant damages to which he is entitled See the cases of Fashanu v Adekoya (1974) 1 All NLR (pt 1) 35 and Ogunleye v Oni (1990) 2 NWLR (pt 135) 745 at 783. I am therefore making an appropriate award of damages in favour of the appellant judging from the exhibits and receipts tendered in the case. This will however be in the alternative.”
.
.
.
✓ DECISION:
“On the final analysis this appeal succeeds and the judgment of the Akure High Court delivered on 3/12/90 in Suit No AK/34/86 is hereby set aside and in its place the following judgment is entered in favour of the appellant. The 1st respondent is hereby ordered to do all that is necessary under the law to obtain the consent of the Governor of Ondo State enabling the grant to the appellant a certificate of Occupancy in respect of the said piece or parcel of land as contained in Survey Plan No OG53/B/71 attached to the Deed of Conveyance dated 19th December 1972 and registered as 43/43/1451 at Ibadan now kept at Akure within 60 days from the date of this judgment. The appellant is to pay to the respondent the balance of N20,000.00 as purchase price of the said property within the same 60 days from the date of Judgment. In the alternative the respondent is ordered to pay the appellant the sum of N500,000.00 as special and General Damages inclusive of the N30,000.00 deposit made to the 1st respondent. Appeal against 2nd respondent is struck out the appellant having withdrawn against the Bank.”
➥ MISCELLANEOUS POINTS
➥ REFERENCED (STATUTE)
Sections 22 and 26 of the Land Use Act.
➥ REFERENCED (CASE)
➥ REFERENCED (OTHERS)
