➥ CASE SUMMARY OF:
Dr. Benjamin Ohiaeri V. Alhaji B. I. Yussuf & Ors. (SC.35/2004 • 27 Feb 2009)
by Branham Chima (LL.B.)
➥ SUBJECT MATTER(S)
Sale of Land;
Priorities.
➥ CASE FACT/HISTORY
I have considered the evidence on record and the submissions of counsel for the parties. The facts of this case are essentially not in dispute. The 2nd plaintiff who is also 2nd respondent before us sometime in 1982 entered into an agreement with the 1st defendant who is 3rd respondent herein for the sale of the property in dispute at the agreed sum of N850,000.00. And pursuant thereto the 2nd respondent, as purchaser, paid to the 3rd respondent, as vendor, the sum of N481,000.00 representing the agreed part payment. In July 1985 the self same 3rd respondent in conjunction with her daughter, the 4th respondent who is also the co administratrix of the property conveyed the same property to the 3rd defendant who is the appellant.
This is an appeal against the judgment of the Court of Appeal delivered on the 8th of May, 2003. The action was initiated by a writ of summons issued at the High Court of Lagos State and was filed on the 18th of August, 1992. The plaintiffs are the 1st and 2nd respondents both at the court below and in this court. The 3rd defendant is the appellant at the court below.
The claim as contained in the amended statement of claim dated 22nd of April, 1996 was for the following reliefs, inter alia: ‘(i) 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 the 10th of February, 1983 and registered as no. 84 page 84 in volume 1982 at the Lagos State of Nigeria Land Registry is valid, subsisting and binding between the parties.’
Pleadings were filed and exchanged. Only the 3rd defendant reacted to the processes served on him and filed his statement of defence. After both the statement of claim and statement of defence had undergone several amendments the matter proceeded to trial. By his judgment on the 24th of September, 1999, the learned trial judge D.F. Akinsanya J allowed the claim and granted all the reliefs (i)-(vi) as claimed. He also awarded the sum of N3,500,000.00 to the plaintiffs/respondents representing damages for loss of use of the subject property. The 3rd defendant/appellant was not satisfied and proceeded to the court below on appeal. By its judgment on the 8th of May, 2003 the appeal was dismissed. The 3rd defendant/appellant was still not satisfied and has come on appeal to this court.
➥ ISSUE(S)
I. Whether exhibit ‘A’ relied on by the lower court was capable of vesting the plaintiff/respondent with an equitable interest in the property in dispute?
➥ RESOLUTION(S) OF ISSUES
[APPEAL DISMISSED]
↪️ ISSUE 1: IN RESPONDENT’S FAVOUR.
[EQUITABLE INTEREST IS CREATED IN THE 2ND RESPONDENT’S FAVOUR
‘The emphasis is the payment of the agreed full or part of the purchase price coupled with possession by the purchaser. And I hold the view that possession in this context includes constructive possession. It is in evidence that the respondent would have been in physical possession but for the fact that the 3rd respondent/vendor was still there. See the evidence of the PW2 at page 91 lines 16-17 of the record. Ordinarily therefore the agreement for sale in exhibit ‘A’ being the one upon which the 2nd respondent paid the purchase price coupled with his constructive possession of the land, entitles him to an equitable interest strong enough to defeat any subsequent legal estate created in favour of the 3rd defendant/appellant. That however is not the end of the matter. The legal challenge here is that the agreement for sale is null and void and does not endure to create any equitable interest in favour of the 2nd respondent capable of defeating the subsequent legal estate of the 3rd defendant/appellant because it was made between the 2nd plaintiff/respondent and the 1st defendant/3rd respondent without the mandatory concurrence of the 2nd defendant/4th respondent who was a co-administratrix of the property and in contravention of the provisions of section 4(2) of the Administration of Estates Law Cap 3 Laws of Lagos State 1962. It is the submission of the appellant therefore that there existed no contract of sale of the disputed property let alone one that supersedes the subsequent legal estate of the appellant.’
⦿ THERE IS NO EVIDENCE THAT OTHER ADMINISTRATRIX DID NOT CONCUR
‘Learned counsel for the appellant argued that by reason of this provision, the agreement not having been also signed and/or made by the second administratrix is null and void. I am not, with respect, persuaded by this submission. At this risk of repetition, the provision states simply that where as respects real estate there are two or more personal representatives a conveyance of real estate devolving under this part of this law shall not, be made without the concurrence therein of all such representatives. The text ‘shall not be made without the concurrence therein of all such representatives’ should be accorded its clear literal construction. ‘Concur’ means ‘to agree’. And concurrence simply means agreement. In my view, therefore, the provision simply means that where there are two or more personal representatives a conveyance of real estate under this law shall not be made without the agreement of all such representatives. The word ‘concurrence’ in the context is not synonymous with the word ‘execution’. Thus, a conveyance can, under section 4(2) of the Administration Law Cap 3 Laws of Lagos State, be validly executed by one of two or more personal representatives provided it is so executed and signed with the concurrence or agreement of such other personal representatives.’
‘It should be noted that the 3rd and 4th respondents as well as the other beneficiaries of the estate never challenged exhibit A in any form; neither did they deny receiving the benefit from same. Even when the 1st and 2nd respondents instituted the action, they never contested it neither have they appealed against the judgments of the lower courts against them. It is therefore very clear that the 3rd and 4th respondents together with the other beneficiaries of the estate in question are satisfied with the judgments of the lower courts on the issues. It is my view that the above facts clearly demonstrate concurrence of the 3rd and 4th respondents together with other beneficiaries with the agreement to sell the property to the 1st and 2nd respondents. Exhibit A is an acknowledgement of receipt of payment of money by the 3rd respondent and all other beneficiaries of the estate of late Justice Dan Ibekwe which fact had not been denied by the 3rd and 4th respondents and any of the other beneficiaries of the said estate neither have they either collectively or individually taken any step known to law to challenge exhibit A – not even to offer such a challenge by way of defence to the action resulting in this appeal. I therefore agree with the lower courts that the failure of the other administrators to contest, challenge or deny the agreement, exhibit A, to sell the land in dispute to the 1st and 2nd respondents is sufficient evidence of consent of all the administrators to the said agreement.’
DISPOSAL OF FAMILY PROPERTY WITHOUT CONCURRENCE OF OTHER MEMBERS IS VALID BUT VOIDABLE
‘The 3rd and 4th respondents are mother and daughter respectively. And they are the two administrixes of the property. The property has since the death Justice Daniel Ibekwe become family property. In these circumstances, can any sale of the family property by the 3rd respondent without the concurrence of the 4th respondent create an equitable interest in favour of the purchaser? I shall answer this question in the affirmative. The 3rd respondent is the mother of the 4th respondent and a number of other children. In the absence of any decision to the contrary, she is presumed to be the head of the family. The established principle of customary law in Nigeria is that where the head of a family disposes family property without the consent of the other members of the family, it is still a valid sale, only voidable at the instance of those other members of the family.’
APPELLANT HAD NOTICE OF THE EARLIER SALE
‘The knowledge of Chief Ladi Williams and indeed Chief Rotimi Williams chambers about the prior sale to the 2nd plaintiff/respondent is, in law, imputed to the appellant. The result is that he cannot claim protection under the doctrine of innocent purchaser for value without notice. He had notice or notice imputed to him and so the defence does not avail him.’]
.
.
.
✓ DECISION:
‘On the whole, I do not fancy any reason to disturb the decision of the two courts below which I therefore affirm. This appeal stands dismissed and is accordingly dismissed for lack of merit. I assess the costs of this appeal at N150,000.00 in favour of the plaintiffs/respondents.’
➥ FURTHER DICTA:
⦿ WHERE PART PAYMENT IS MADE IN RESPECT OF LAND
The established legal principle is that where there is an agreement for sale of land either under native law and custom or any other mode of sale and for which the purchaser, acting within the terms of the agreement, makes full or part payment of the purchase price to the vendor and is in furtherance thereof put in possession, he has acquired an equitable interest in the property and which interest ranks as high as a legal estate and cannot therefore be overridden by a subsequent legal estate created by the same vendor or his legal representative in favour of another person. — F. F. Tabai JSC.
⦿ WHEN AN ACTION FOR SPECIFIC PERFORMANCE WILL LIE
An action for specific performance arises once there exists a contract coupled with circumstances which make it equitable to grant a decree of same. This being a contract for the sale of land attracts a greater justification for a decree of specific performance because as opposed to other types of contract, the land may have a special and peculiar value to the purchaser. The plaintiffs/respondents have therefore every justification to claim for specific performance. With respect to the 3rd respondent, she must do equity for ‘equity looks on that as done which ought to be done’. Put in another way, equity imputes on her an intention to fulfil an obligation and the obligation is for her to specifically perform the result is that I also resolve the 2nd issue in favour of the respondents. — F. F. Tabai JSC.
➥ LEAD JUDGEMENT DELIVERED BY:
F. F. Tabai. J.S.C.
➥ APPEARANCES
⦿ FOR THE APPELLANT(S)
⦿ FOR THE RESPONDENT(S)
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
➥ REFERENCED (CASE)
➥ REFERENCED (OTHERS)
