Mr. John U. Enejo v. Alhaji Nasir (2006) – CA

⦿ CASE SUMMARY OF:

Mr. John U. Enejo v. Alhaji Nasir (2006) – CA

by PipAr Chima

⦿ COURT:

Court of Appeal

⦿ AREA(S) OF LAW

Certificate of occupancy.
Right of occupancy.
Specific performance.

⦿ NOTABLE DICTA

* UNREGISTERED INSTRUMENT ADMISSIBLE TO SERVE AS PAYMENT OF MONEY
As rightly pointed out by the learned counsel for the appellant, if exhibit P1 was to be regarded as a deed of conveyance, then it must be registered since it is a registrable instrument. See section 2 of the Land Registration Law of Kaduna State, as failing to register it renders it inadmissible in evidence. But if it was merely meant to serve as proof that payment of the purchase price of the disputed land and not to enforce any right created by it, then in that case, it is admissible in evidence. – Sanusi JCA. Enejo v. Nasir (2006)

* UNREGISTERED INSTRUMENT ADMISSIBLE TO PROVE RECEIPT OF MONEY
The law is well settled that an unregistered document which falls within the provisions of section 2 of the Land Registration Law of Kaduna State or under the corresponding provisions of the Land Instrument Registration Act can be admitted in evidence as a receipt of money transaction and memorandum of sale only. It cannot certainly be used to prove title. It may give rise to an equitable interest enforceable by specific performance. – Sanusi JCA. Enejo v. Nasir (2006)

* COUNSEL SHOULD NOT MISQUOTE JUDGE
I will pause here to advise that learned counsel when referring to statements made by trial Judges should not impute words not said by them, or misquote their statements and present statements which were not actually uttered or remarked by them (the Judges). A close look at the passage quoted above leaves one in no doubt that the Judge did not say that the depositions were of no assistance to him . Rather, what he said was that they were of little assistance to him . He is therefore misunderstood or quoted out of context. – Sanusi JCA. Enejo v. Nasir (2006)

* ORAL EVIDENCE IN EARLIER TRIAL NOT RELEVANT IN A LATER TRIAL
With due deference to the learned Senior Advocate of Nigeria, it is settled law that evidence of a witness taken in an earlier proceedings is not relevant in a later trial or proceeding except for the purpose of discrediting such a witness in cross examination and for that purpose only. – Sanusi JCA. Enejo v. Nasir (2006)

* SPECIFIC PERFORMANCE FOR BREACH OF CONTRACT
It is settled law that in an action for breach of contract in which claim for specific performance is made, there must be a valid, solid and existing and enforceable contract. The contract and the terms must be unequivocal and not based on the realm of conjecture. Similarly, the parties to the contract must have understood one another that they were entering a binding contract. Also, a party seeking to enforce a contract must show that all the conditions precedent have been fulfilled and that he has either performed, or is ready to perform all the terms which ought to have been performed by him. Again, where time is of essence or a condition precedent expressly or impliedly stated, and he is guilty of delay in performing his own part of the agreement, then such delay could count against him and might bar his claim for specific performance. – Sanusi JCA. Enejo v. Nasir (2006)

* CERTIFICATE OF OCCUPANCY IS PRIMA FACIE EVIDENCE OF RIGHT OF OCCUPANCY
Exhibit D5 i.e the certificate issued by the Governor is simply a prima facie evidence of right of occupancy in his favour. However, such evidence is rebuttable. Title to land can only be vested by a holder of it if the latter has genuine or proper title to the property. – Sanusi JCA. Enejo v. Nasir (2006)

* SPECIFIC PERFORMANCE DISTINGUISHED FROM DAMAGES
To sue for specific performance is to assume that a contract is still subsisting and therefore to insist that it should be performed. That will mean that the plaintiff will not want it repudiated unless for any other reason the court was unable to aid him to enforce specific performance of it. He may then fall back for remedy at common law for damages. Specific performance is a discretionary remedy. This does not mean that it will be granted or withheld arbitrarily; the discretion is a judicial discretion and is exercised on well settled principles. It means that in an action for the specific performance of a contract of the class usually enforced, the court may take into account circumstances which could not be taken into account in an action for damages for breach of contract, such as the conduct of the plaintiff, or the hardship which an order for specific performance will inflict on the defendant. – Ba’Aba JCA. Enejo v. Nasir (2006)

⦿ PARTIES

APPELLANT
Mr. John U. Enejo

v.

RESPONDENT
Alhaji Nasir A. Sanusi
Mr. Okway Nwosu Ewelukwa

⦿ LEAD JUDGEMENT DELIVERED BY:

Sanusi JCA

⦿ APPEARANCES

* FOR THE APPELLANT

* FOR THE RESPONDENT

⦿ CASE HISTORY

The 1st respondent herein as plaintiff at the lower court was working with the First Bank of Nigeria Plc. Sometimes in 1992, a colleague of his approached him to buy the house in dispute situate at Paladan along Old Kano Road in Zaria. He showed interest in purchasing the house which belonged to the 1st defendant/appellant (herein). The 1st defendant/appellant agreed to sell the said house to the plaintiff/1st respondent at a cost of one hundred and fifty thousand naira (N150,000). A part-payment of ninety-five thousand naira (N95,000) was made to the 1st defendant/appellant by the 1st respondent/plaintiff and to that effect, a sale agreement was drawn by a solicitor named Femi Olutokumbi Esq., who was also instructed to conduct a search on the said landed property. The said counsel reported to the parties that the disputed house was free from any encumbrances, and that it was the 1st defendant/ appellant who owned the said house. The sale agreement was tendered in evidence as exhibit at the trial and marked as exhibit P1. Consequently, the appellant/1st defendant surrendered to the plaintiff/1st respondent, a certificate of occupancy No. 0002790 in respect of the disputed house which was also tendered in evidence at the trial and marked as exhibit P2.

On 21-8-1992, the plaintiff/1st respondent went to see the house as agreed by the 1st defendant and also for him to be introduced to the tenants living in the said house by the vendor i.e the appellant and on reaching there, the latter did not give him the utility bills accrued in the house on the pretext that the tenants did not settle such bills. At that stage, the appellant/1st defendant showed to the 1st respondent/plaintiff a copy of an agreement between him (the appellant/1st defendant) and the 2nd defendant/respondent. A copy of this document was obliged to the 1st respondent/plaintiff on request and such document was exhibited at the trial and marked exhibit P3. At a later date, the plaintiff/1st respondent was taken to the house by the appellant/1st defendant where he was introduced to the wife of the 2nd defendant as their new landlord, and he on that day thoroughly inspected the disputed house. Since that time, the appellant never surrendered the house to the 1st respondent/plaintiff, notwithstanding the fact that an original certificate of occupancy covering the disputed landed property was given to him and a sale agreement was duly executed by them.

In view of this development, the plaintiff/1st respondent instituted an action against the appellant as defendant which culminated into this appeal and also joined the 2nd respondent as co-defendant. At the trial in the lower court, the plaintiff (1st respondent) testified in his own behalf and tendered three exhibits, namely exhibits P1, P2 and P3 while the appellant also testified on his own behalf as 1st defendant and tendered exhibits marked as exhibits D1 to D7. The 2nd respondent/ defendant did not appear throughout the trial but his deposition at the first trial before Makeri J and also that of his counsel Fabian Okonkwo, were tendered in evidence by the defendants and marked as exhibits D6 and D7 respectively.

After taking evidence called by parties, learned counsel addressed the court. In a considered judgment, the learned trial Judge found in favour of the plaintiff/1st respondent and granted all the reliefs he sought as adumbrated in the fore paragraph of this judgment except the claim for general damages for N500,000 which the trial court refused.

Dissatisfied with the lower court’s judgment, the appellant appealed to this court.

⦿ ISSUE(S) & RESOLUTION

[APPEAL: DISMISSED]

1. Whether the lower court per Hon. Dogara Mallam J was correct in law when he admitted a registrable instrument exhibit P1 (clearly inadmissible in evidence) purely as evidence of purchase and yet proceeded to consider its covenants as a conveyance for the purposes granting title to the plaintiff?

RULING: IN RESPONDENT’S FAVOUR.
I. It is clear from the evidence adduced, especially exhibit P1 and the entire circumstance of the case, that the plaintiff paid N95,000.00 out of the N150,000.00 agreed upon and that the out standing sum of N55,000.00 was to be settled upon ejection of the tenants and surrendering of vacant premises to him. This means that the plaintiff had acquired an equitable interest in the land which may be converted into a legal estate by specific performance for which order he approached the lower court. The case before the lower court was not on a covenant in the said document. The said exhibit P1 was simply meant to be used in proving that sale agreement was entered into by the parties and to that effect, part-payment was made and acknowledged and that the outstanding sum would be paid upon fulfillment of the condition as agreed before the house was surrendered to the purchaser there plaintiff/1st respondent. It is my view that the learned trial Judge merely evaluated the evidence adduced before him as it relates to the circumstance leading to the sale agreement and the purported disposal of the disputed land to another person.

II. A court of law is always expected in any proceedings before it to evaluate evidence and ascribe value to it or act on it in as much as such evidence is legally admissible or rightly admitted. This, to my mind, is simply what the learned trial Judge did and in my view he did so within the precinct of the law.

III. The oral and documentary evidence adduced at the trial which largely centered on exhibit P1, obviously had to attract the consideration and the evaluation by the trial Judge in line with the reliefs sought which also bordered on enforceability or otherwise of the sale agreement. The crux of the matter, to my mind, is whether the plaintiff/1st respondent was entitled to the declaration that there was a valid sale of the house to him by the appellant or whether the latersale by the appellant to the 2nd respondent was valid. Thus, after a careful consideration of the evidence adduced and the surrounding circumstance of the case, I am inclined to resolve this issue in favour of the 1st respondent and against the appellant.


2. Whether the learned trial Judge was correct when he concluded prematurely in his judgment that the 1st respondent was entitled to the relief of specific performance?

RULING: IN RESPONDENT’S FAVOUR.
I. Thus, having carefully considered the evidence adduced at the trial and the surrounding circumstance of the case, I strongly hold the view that this is a clear example of a case where decree of specific performance should validly be made. The learned trial Judge was therefore right in granting such relief. The learned trial Judge was therefore right in granting such relief.


3. Whether the learned trial Judge was correct in law when he held that the appellant’s statutory right of occupancy (evidenced by exhibit D5) did not extinguish the alleged equitable interest of the 1st respondent as sewn together by exhibit P1 (inadmissible document) and the plaintiffs conduct in the entire trial.

RULING: IN RESPONDENT’S FAVOUR.
I. In the instant case, I do not see how the 2nd defendant can claim to have title to the disputed land when he himself did not have such title. This is so, in view of the prevailing unchallenged and uncontroverted evidence that he bought the landon a photocopied certificate of an original copy of that same certificate in possession of the 1st respondent notwithstanding the fact that he knew about the earlier transaction on the same land between the 1st and 2nd respondents. He (the appellant) is also aware that the previously subsisting customary right has not been revoked. To my mind therefore, the certificate of occupancy which was secured later i.e. exhibit D5, cannot extinguish the plaintiff/1st respondent’s interest.

II. Right from the out set, the 2nd defendant could not sell the land to the appellant after the same was already sold to the plaintiff/1st respondent by him. The certificate of occupancy he obtained was granted by the Governor on a duplicate copy of the original certificate i.e. exhibit P2 and he knew or had reason to know or believe that the land had some encumbrances attached to it. Had it been that a proper search was made by the 2nd defendant, such encumbrances would have been revealed and the 2nd certificate i.e. exhibit D5 would have been granted by the Governor and the subsequent consent would also have been given. Moreso, exhibit P1 was issued earlier than exhibit D5 which was obtained during the pendency of the suit at the lower court. The 2nd defendant therefore lacked valid title to transfer same to the appellant. It is clear from the provisions of section 34 of the Land Use Act that any person without title to a parcel of land in respect of which a certificate of occupancy was issued acquired no right or interest which he did not have before. This is the weakness of the 2nd certificate of occupancy issued in this case i.e exhibit D5. It is never associated with title. A certificate of occupancy issued in respect of a parcel of land cannot therefore estop the court from enquiring into the validity and existence of the title of the person who claimed to possess it before the issue of the certificate.

⦿ ENDING NOTE BY LEAD JUSTICE – Per

⦿ REFERENCED (STATUTE)

⦿ REFERENCED (CASE)

* WHERE ORAL EVIDENCE IN PRIOR TRIAL MAY BE USED
Ariku v. Ajiwogbo (1962) All NLR (Pt. 4) 630, Ademola CJF (of blessed memory) delivering the judgment of the Supreme Court stated the law as follows:- “This court has frequently directed attention to the practice, now not uncommon of making use of evidence of a witness in another case as if it were evidence in the case on trial. As was pointed out in Alade v. Aborishade (1960) 5 FSC 167 at 171, this is only permissible under section 33 or 34 of the Evidence Act. Where a witness in a former case is giving evidence in a case in hand, his former evidence may be brought up in cross-examination to discredit him if he was lying, but evidence used for this purpose does not become evidence in the case in hand for any other purpose. There are also prerequisites to the making use of the former testimony of a witness; for example his attention must be called to the former case where such evidence was given and he would be reminded of what he had said on the occasion.”

* NO ROOT OF TITLE MAKES C of O MERE PAPER
Daniel Igwu Uche v. Jonah Eke and 2 Ors., the Supreme Court per Belgore JSC (as he then was and now CJN) had this to say at pages 6 to 7: “Any grant of land whether private or by statutory right of occupancy evidenced by a certificate of occupancy will be mere piece of paper not worth anything if the root of title to make the conveyance is not vested in the vendor. If this is not so, all a person has to do is to go to the land office of the government and obtain a right of occupancy in respect of land of a family who may not know that their land has been given to a complete stranger.”

* CERTIFICATE OF OCCUPANCY IS PRIMA FACIE EVIDENCE OF R of O
Wakama v. Kalio (supra), Musdapher JCA (as he then was) had this to say on pages 130/131: “The mere fact that a certificate of occupancy is issued by the Governor does not automatically vest the leasehold thereby created in favour of the person named. A certificate is only a prima facie evidence of the right of occupancy in favour of the person named as allottee. Thus any person without title to a parcel of land in respect of which a certificate of occupancy is issued acquired no right or interest.”

⦿ REFERENCED (OTHERS)