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In The Supreme Court of Nigeria
On Friday, the 25th day of
January 2008
Before Their Lordships
S.C. 426/2001
Between
And
Judgement of the Court
Delivered by
Walter Samuel Nkanu
Onnoghen. J.S.C
This is an appeal against the
judgment of the Court of Appeal, holden at Enugu
in appeal No.CA/E/102/79 delivered on the
11th day of November, 1999 in which the court dismissed the
appeal of the appellant against the judgment of the High Court of Imo State
Holden at Afikpo Division in suit
No.HAF/13/78 delivered by that court on
the 18th day of June, 1979 in which it dismissed the appellant's
claim for statutory right of occupancy, trespass, injunction and specific
performance, but awarded the sum of
On the 26th day of
May, 1978 the appellant, as plaintiff, caused a writ of summons to be issued
against the respondents, as defendants, claiming the following reliefs:-
(i)
A declaration that plaintiff is the person entitled to a statutory
right of occupancy to a parcel of land near Eke Market,
Afikpo and which is part of a larger area of land situate at
Amachi Village, Afikpo
in Afikpo Local Government Area of Imo State
within Judicial Division, the annual value which is
(ii)
(iii)
Injunction perpetually restraining the defendants, their servants,
agents and workmen from further entry upon or interference with the land.
(iv)
Specific performance against the defendants in respect of the
contract and for lease agreement made on the
26th day of January,
1965 in connection with the renewal of the lease".
The facts of this case are
very simple and straight forward just as they remain undisputed. The
original 1st defendant granted a lease of the property in dispute
to the appellant on the 26th day of January, 1965 for 10 years as
evidenced in Exhibit A. Exhibit A was therefore to expire on 26th
day of January, 1975 with an option for renewal. In 1966 appellant took
possession of the land and laid foundation for a concrete building thereon
up to the floor level before the Nigerian Civil War forced him to flee
Afikpo to his home town,
Achina from where he returned in 1971 to find motor mechanics in
occupation of the property who atoned tenancy to him as appellant continued
with the leasehold.
Sometime in February, 1975 the
appellant approached the original 1st defendant/respondent for
the renewal of the lease who refused to allow appellant exercise the option
and refused to collect further rents from the appellant on the ground that
the original 1st defendant/respondent has made a gift of the land
in dispute to the 3rd respondent.
On his part, the 3rd
defendant/respondent knew of the lease to the appellant and the fact that
the mechanics on the land were the sub-tenants of the appellant. In 1978,
the 3rd respondent peacefully quitted the mechanics from the land
and surveyed same after which the land was formally conveyed to the 3rd
respondent by the 1st respondent and he commenced building
thereon in April, 1978. In May,
1978 when it finally dawned on the appellant that the 1st
respondent had no intention of changing his mind on the option of renewal of
the lease, the appellant instituted this action claiming the relief’s
earlier reproduced herein.
Learned counsel for the
appellant, Chief H. B
Onyekwelu in the appellant's brief
filed on 30th day of September, 2007 and adopted and relied upon
at the hearing of the appeal on the 29thday
of October, 2007, formulated the following issues for the determination of
the appeal, to wit:-
3.1
Whether specific performance of the appellant's equities cannot be
enforced against the 3rd respondent whose ostensible interest
over the land is that of a mere volunteer, but is the alleged successor in-
title of the 1st respondents;
3.2
Whether on the facts of the case, the appellant was guilty of delay
at all or such delay as in the circumstances could deprive the appellant,
enforcement of specific performance against the 1st respondent or
the 3rd respondent or their successors-in-title;
3.3
Whether fraud or unconscionable behaviour should be specifically
pleaded as against setting out facts in support thereof;
3.4
Whether the appellant was not entitled to notice to quit from the
land, if so what would be the length of time of the notice, in view of
Exhibit A which was a lease for ten years, in the first instance;
3.5
Was the court of appeal right in holding that the 3rd
respondent was not liable in trespass on the facts and applicable law in the
circumstances; And that the appellant was not entitled to damages at all in
lieu of specific performance? If not whether the
appellant is not entitled to the market value of the land and improvement.
Thereof by the appellant, of the property so well commercially situated;
3.6
If the supreme court holds that the appellant is entitled to specific
performance, is the lease perpetually renewable or merely for another ten
years or so;
3.7
Whether the provisions of the land use Act 1978, made it impossible
for an order of specific performance to be entered against the 1st
and 3rd respondent. "
On the other hand, learned
counsel for the respondent, Chief
Ebele Nwokoye
identified the following issues for determination in the respondent's brief
filed on 18th day of October, 2005:
3.1
Whether specific performance of this appellant's equitable interest
could not have been ordered by the court below in the circumstances of this
case;
3.2
As opposed to appellant's 2nd issue, whether the appellant
has pleaded argued and satisfied the court that the special reasons to
interfere with the concurrent findings that appellant did not come to court
promptly to claim the equitable relief of specific performance;
3.3
As opposed to
appellant’s 3rd issue,
whether the appellant pleaded fraud and, if so, why the appellant is
at pains to pin-point paragraphs of the statement of claim where he did so;
3.4
As opposed to appellant's 4 issue, whether the appellant who did not
appeal against the finding of the High Court that he was quitted from the
disputed land peacefully can now agitate the contrary view, without specific
.leave to do so and, furthermore, whether the appellant has pleaded, argued
and satisfied the court on special reasons or circumstances to interfere
with the concurrent finding on the issue by the two
lower courts;
3.5
Appellant's
5th issue is hereby adopted for argument;
3.6
Appellant's 6th issue is hereby opposed on the ground that
it is not based on any ground of appeal before the court.
Awosile
v. Sotumbo (1992) 6 SCNJ
182;
3.7
Appellant's 7th issue is hereby opposed on the ground that
it is not based on any ground of appeal before the court,
Awosile
v. Sotumbo (1992) 6 SCNJ
182;
3.8
It is further submitted that no issue have been raised on the grounds
of appeal numbered (3) (9) (11) and (12) and those grounds are therefore
deemed to have been abandoned.
David Oguntade
v. Ezekiel Adeleye (1992) 10
SCNJ 58.
It is important to note at
this stage that the learned counsel for the appellant filed no reply to the
brief of the respondents in answer to the complaints as to whether
appellant's issues 6 and 7 arose from the grounds of appeal before this
court and also the abandonment of grounds 3,9,11 and 12 of the grounds of
appeal following the non formulation of issues
therefrom.
The above complaints are very
germane as it is settled law that whereas ground(s) of appeal must arise
from the decision appealed against, issues for determination must be
formulated from the said grounds of appeal otherwise they are invalid. In
that respect it is my view that appellant's issues 6 and 7 not having been
formulated from any of the grounds of appeal filed in this
court, are incompetent and are hereby struck out.
As regards appellant's issue
No.4 I agree with learned counsel for the
respondents that appellant never appealed against the concurrent finding by
the lower courts that appellant was quitted from the land in dispute
peacefully and cannot now turn round to argue the contrary, without leave of
the court. To that extent, the argument on appellant's issue No 4 is
hereby discountenanced.
With respect to grounds
3,9,11,and 12 of the grounds of appeal filed in
this court in respect of which no issue(s) has/have been formulated, it is
settled law that the said grounds are deemed abandoned by the appellant and
liable to be struck out. I hereby order accordingly.
Be that as it may, it is
unfortunate that from the simple and straight forward facts of this case,
which is very much undisputed, so many issues could have been properly
raised for determination when the primary issue before the court remains
whether having regards to the facts and circumstance of the case, appellant
was entitled to a decree or order of specific performance; every other issue
remains ancillary if at all relevant.
In arguing issue 1, learned
counsel for the appellant submitted that the 3rd respondent,
having stepped into the shoes of the 1st respondent in respect of
the land, was bound by any equities attached to the land in that before he
acquired his supposed interest, the 3r
respondent was a volunteer with full knowledge of the appellant's equities
in the land; that it is trite law that where a purchaser of land or a lessee
is in possession of the land and has paid the purchase money to the vendor
or has paid the rent to the lessor as the case
may be, then in either case, the purchaser or the lessee has acquired an
equitable interest in the land which is as good as a legal estate and this
equitable interest can only be defeated by a purchaser of the land, for
value without notice of the prior equity, relying on the case of
Obijuru vs
Ozims (1985) 2 NWLR
(Pt. 6) 167 at 179. Learned counsel also cited and relied on
Vol.36,
Halsbury's
Laws of England (3rd Eel.330
Para. 482) which states that
"where
there is a contract for the sale or demise of property and the property is
thereafter transferred to a third party, the general practice is that
specific performance may be had against the transferee;
i.
If he is a volunteer, or
ii
Takes with notice of the prior contract, or
iii
Acquired only an equitable title and has no better equity than the
purchaser or intended lessee"
Learned counsel for the
appellant argued that the 3rd respondent being a volunteer who
also took the land with notice is liable to specifically perform the
contract of renewal attached to the land by virtue of Exhibit A, that the
lower court was in error when it held that specific performance cannot be
ordered against the 3rd respondent because he was not privy to
the agreement to renew the lease particularly as that court had earlier held
that the 3rd respondent stepped into the shoes of the 1st
respondent in relation to the land in dispute; that it is not correct, as
held by the lower court, that the original lease had expired before
appellant started to ask for renewal as there is evidence to show that
appellant started to demand for renewal before 25 January, 1975 when the
lease expired; that even if the lease had expired, appellant continued in
possession and was collecting rents from his sub-tenants until April, 1978
thereby being led to believe that the 1st respondent was ready or
could be persuaded to renew the lease.
On his part, learned counsel
for the respondents referred to the holding of the lower court at page 202
of the record to the effect that
"I have already held that at
the time appellant went to court, the basis of his claim had lawfully ceased
to exist. It was the continued existence of his status of a tenant at
sufferance that would have made the 1st respondent compellable"
meaning that the appellant
lost .the status of tenant at sufferance or the relationship of tenant and
landlord which must exist to qualify him to seek specific performance to
compel 1st respondent and that since appellant cannot compel
performance against 1st respondent he cannot also do so against
the 3rd respondent; that the lower court did find that the
appellant's option for renewal had ceased to be and there was not, for that
reason, a cause of action, sealed the fate of the appellant; that appellant
did not appeal against this specific finding and should not now be allowed
to impugn same; that the issue of privity of
contract does not really arise nor have effect on the conclusion judging
from the above findings of the lower court which completely took care of the
appellant's case, that the court should refuse the grant of specific
performance on the following grounds:-
(a)
the trial court refused to exercise its
discretion in favour of the appellant and the appellant did not appeal
against that refusal;
(b)
the Court of Appeal did not interfere with the exercise of the
discretion not to grant specific performance and, indeed, affirmed what the
trial court did as appellant has shown no special circumstances to warrant
the interference of this court;
(c)
the lower courts finding that the appellant's option to renew had
ceased to be and there was not for that reason a cause of action even though
complained against in ground 11 of the grounds of appeal before the lower
court, the same was abandoned when no issue was raised
therefrom;
(d)
the appellant who covenanted to build on the land could not do so
after possessing the land for over 13 years and contented himself with a
mere concrete foundation up to floor level;
(e)
appellant brought action for declaration
of title against his former landlord;
(f)
that the claim on specific performance is
an after thought as the same was not claimed in
the writ of summon; that the claim for specific performance as claimed on
the statement of claim was never paid for.
I will begin a consideration
of the issue in contention between the parties by stating that it is settled
law that the statement of claim supercedes the
writ of summons and that what is claimed in the writ but omitted in the
statement of claimed is deemed abandoned while what is not claimed in the
writ but claimed in the statement of claim becomes the claim before the
court though subject to the payment of appropriate filing fees where
appropriate. In the instant case the additional relief was not for monetary
compensation but for specific performance. It is not that appellant never
paid for the filing of the statement of claim but that he failed to pay for
the additional relief of specific performance. Learned counsel cited and
relied on Order VIII Rule 5 of the
High Court Rules applicable to Eastern Nigeria
Vol. IV Laws of Eastern Nigeria, 1963
which provides as follows:-
" 5.
The fees prescribed in Part
1 of the second schedule shall be payable by the party prosecuting a
proceeding or asking for a service as therein provided in respect of the
proceedings or services to which they relate and such fees may afterwards be
recovered as costs of cause if so ordered.
Fees may be waived or remitted, by a Judge on the ground of the poverty of
the person chargeable therewith where it appears that there are substantial
grounds for his taking the proceeding or asking for the service to be
rendered: Provided however, that a Judge may, where he thinks fit, order any
party to pay any fees so waived or remitted. "
Counsel also relied on item 10
of the Part 1 of the second schedule to the above rules which provides for
the payment of the sum of £3.15.0 "For any other relief or assistance not
specifically provided for" as the basis for his submission that
appellant ought to have made payment separately for the relief of specific
performance. I do not agree with learned counsel for the respondents in that
respect particularly as appellant paid for the filing of the statement of
claim, in which the relief is claimed and did so after the registrar duly
assessed same for payment. I therefore hold the view that the relief of
specific performance is properly before the court and that the lower courts
were right in considering whether to award same or not.
Having taken care of the
preliminary matter, the issue is whether this is a proper case for the court
to exercise its equitable jurisdiction by ordering specific performance.
In cases where there is a
subsisting contract or agreement for the sale or lease of land, the court,
being also a court of equity is always inclined to grant specific
performance because the land being sold or leased may have a peculiar value
or significance to the purchaser or lessee particularly where it is a choice
land in a busy commercial centre of the town, as in the instant case.
Since the grant of an order of
specific performance is at the discretion of the court, it is always
advisable that the party claiming same should call evidence on damages
claimed or suffered in the event that the court, for some reason is unable
to grant specific performance.
It is also settled law that
the onus is on the person who seeks to enforce his right under a contract to
show that he has fulfilled all the conditions precedent, and that he has
performed all those terms which ought to have been performed by him. Where
the plaintiff fails or defaults in the discharge of his own obligations
under the contract, the action must fail - See
Balogun vs Alt -Owe (2000) 3
NWLR (Pt.649) 477
Ezenwa vs
Ekong (1999) 11
NWLR(Pt.625)55.
From the above stated
principles, it is very clear that a decree or an order of specific
performance is a form of relief that17
is purely equitable in origin
and the fundamental rule is that specific performance will not be decreed or
ordered if there is an absolute remedy at law in answer to the.
plaintiffs claim, for instance, where the
plaintiff would be adequately compensated by the common law remedy of
damages. The jurisdiction in specific performance is therefore anchored on
the inadequacy of the remedy of damages at law - See
Afrotec Tech. Serv. (Nig) Ltd vs MIA &
Sons Ltd (2000) 15NWLR (Pt. 692) 730 at 790.
The question then is, how do the facts of this
case fit into the principles guiding the order of specific performance?
It is not disputed that
appellant entered into a lease with the 1st respondent in respect
of the land in dispute for a term of 10 years which was to expire on 25th
January, 1975 with an option to renew same for a further term of years.
The lease duly came to an end
by efflux of time though appellant had, meanwhile put up a foundation on the
land up to the floor level before abandoning same following the outbreak of
the Nigerian Civil War. It is important to note that the
lease18
ended
without the 1st respondent agreeing to renew the lease nor, to
accept further rents from the appellant. The lower courts therefore came to
the right conclusion when they held that the lease was duly terminated by
efflux of time.
However, the action for
specific performance appears to be founded on the option to renew contained
in the lease between the appellant and 1st respondent.
Learned counsel for the
appellant has submitted that the 3rd respondent can be ordered to
specifically perform the contract of
option
to renew particularly as he stepped into the shoes of the 1st
respondent and was a volunteer and did take with
notice of appellant's equities - option to renew.
By "a volunteer" the law means a person who enters into any
transaction of his own free will or a person to which property is
transferred without valuable consideration. It is the second meaning that is
more relevant to the facts of this case.
We have to bear in mind that
the principles of specific performance relate to enforcement of contract
entered into between the parties and that a contract involves offer and
acceptance of the offer coupled with provision of consideration. One may ask
in relation to this case, what is the contract that appellant wants the
court to specifically enforce? There is only one lease agreement between the
parties which lease expired by effluxion of
time. With that expiration any rights arising
therefrom became spent or non-existent and
consequently unenforceable or is the appellant talking of the option
to renew as constituting the contract he wants specifically enforced? If so
is an option to renew a lease a contract enforceable by specific
performance particularly where there is no
provision in the lease to the effect that the lease is renewable in
perpetuity or that the landlord or lessor shall
not withhold consent to renew the lease? Even where there is a provision
that the lessor shall not unreasonably withhold
consent to renew the lease, it still leaves the lessor
with the discretion either to renew or not to renew the lease how much more
where there is no such provision and the lessor
refuses, as in the instant case, to renew the lease.
Is he bound to renew the lease?
If the option to renew is
considered the contract to be enforced, where is the acceptance of that
offer by the lessor 1st respondent,
and what, if one may ask, is the consideration so as to make the alleged
contract binding and enforceable? I am unable to see the basic constituents
of a valid contract existing between appellant and 1st respondent
and by extension 3rd respondent which can be said to be amenable
to specific performance having regard to the fact that the only valid
contract between them had expired without renewal
It is on the above basis that one has to agree with the lower
court that
"the
appellant's option to renewal had ceased to be and there was not, for that
reason, a cause of action".
It should be noted that the
facts of this case is different from the usual factual situations where
specific performance is obtainable. Learned counsel for the appellant has
cited and relied on the decision in Obijuru
vs Ozims (1985) 2
NWLR (Pt.6) 167 at
179 where it was held thus:-
"It is trite law that where a purchaser of land or a lessee is in possession
of the land and has paid the purchased money to the vendor or has paid the
rent to the lessor as the case may be, then in
either case, the purchaser or the lessee has acquired an equitable interest
in the land which is as good as a legal estate and his equitable interest
can only be defeated by a purchaser of the land for value without notice of
the prior equity" and
also Halsbury's
Laws of England (3rd Ed) 330 Para. 482 where it is stated
thus:-
'Where
there is a
contract for the sale or
demise of property and the property is thereafter transferred to a third
party, the general principle is that specific performance may be had against
the transferee,
(i)
If he is a volunteer, or
(ii)
Takes with notice of the prior contract, or
(iii)
Acquired only an equitable title and has no better equity than the
purchaser or intended lessee ".
Though the above statements
represent the law applicable to the situations described therein, the
principles do not apply to the facts of the instant case because primarily,
and this is the most important consideration for its applicability, there is
no existing valid contract of lease or purchase of land between the parties,
the earlier one having expired by effluxion of
time so the 3rd respondent cannot be said to have taken the
property "with notice of the prior contract" between the appellant
and 1st respondent neither has he acquired any further interest
in the property in issue by payment of rents particularly as 1st
respondent refused to renew the lease or collect further rents from the
appellant. I hold the considered view that an option to renew a lease is an
offer made to the landlord, the acceptance of which would constitute a valid
contract enforceable by specific performance; it remains an offer until
accepted. In the instant case, it was never accepted by the 1st
respondent so no enforceable contract exists.
I therefore resolve the issue against the appellant.
On the second issue which
deals with the question as to whether appellant was guilty of any delay in
presenting his case for renewal of the lease, like the other issues, it is
my view that their consideration will have no meaningful effect on the
position of the case particularly as a resolution of issue No l has
rendered the second issue irrelevant. In any event it is not disputed that
appellant went to court after three years of the expiration of the lease at
which time the 3rd respondent had acquired his interest thereon.
On the third issue which deals
with fraud, it is trite law of practice and procedure that for one to rely
on fraud in any case he must first and foremost specifically plead same and
in addition supply particulars of the alleged fraud so as not to take the
other party by surprise - See Order XXXIII Rule 13 of the applicable
High Court Rules of Eastern Nigeria, 1963. In conclusion I find no
merit in this appeal which is accordingly
dismissed with costs which T assess
and fix at ,000.00 (Ten Thousand Naira) against the appellant. Appeal
dismissed.
Judgement delivered
by
Aloysius
Iyorgyer Katsina-Alu.
JSC
I have read before now in
draft the judgment delivered by my learned brother
Onnoghen JSC in this appeal. I entirely
agree with it and, for the reasons which he has given, I too, dismiss the
appeal with
Judgement delivered
by
Dahuru
Musdapher.
JSC
I have had the honour to read
before now the judgment, of my Lord Onnoghcn,
JSC just delivered. In the aforesaid judgment
his lordship has meticulously and admirably dealt with all the issues
properly submitted to this court for the determination of the appeal. I
respectfully adopt his reasonings as mine. 1
too, find this appeal unmeritorious and
accordingly dismiss it.
I abide by the order for costs proposed in the aforesaid lead
judgment.
Judgement delivered
by
Sunday
Akinola Akintan.
JSC
The dispute that led to this
case was over a parcel of land near Eke Market; Afikpo
in Amachi Village, Afrikpo,
Imo State. The land was leased to the appellant on 26th January,
1965 for 10 years. The life span of the lease was to expire on 26th
January, 1975. There was, however, an option for renewal. But the appellant
did not ask for a renewal until sometime in February, 1975. This was after
the expiration of the life span of the ten years lease. The appellant's
request for a renewal was turned down and the defendant refused to accept
any further rent from the appellant. The present action was then commenced
wherein the
appellant, as plaintiff,
claimed against the defendant:
"(i)
A declaration that the plaintiff is the person entitled to a
statutory right of occupancy to a parcel of land near Eke Market,
Afikpo and which is part of a larger area of
land situate at Amachi Village,
Afikpo Local
Government Area of Imo State within Judicial
Division, the annual value which is
(ii)
(iii)
Injunction perpetually restraining the defendants, their servants,
agents and workmen from further entry upon or interference with the land.
(iv)
Specific performance against the defendants in respect of the
contract and for lease agreement made on the 26th day of January,
1965 in connection with the renewal of the lease."
(iv)
Specific performance
against the defendants in respect of the contract and for lease agreement
made on the 26th day ofwith his
reasoning and conclusion that there is no merit in the appeal. I also
dismiss the appeal with =N=10,000 costs.
The plaintiffs claim was
dismissed by the trial High Court and his appeal to the Court of Appeal was
also dismissed. The present appeal is from the judgment of the Court of
Appeal. The main reason for the failure of the plaintiff/appellant
in the two lower courts'is
that the lease he was trying to renew had expired before making his request
for a renewal. There was therefore no subsisting lease which could be
renewed.
I entirely share the same view
that the request for the renewal of the lease could only be made before the
expiration of the lease.
I had the privilege of a
preview of the leading judgment written by my learned brother,
Onnoghen, JSC. He
has fully discussed all the issues raised in the appeal. I agree with his
reasoning and conclusion that there is no merit in the appeal. I also
dismiss the appeal with
Judgement delivered
by
Ibrahim Tanko
Muhammad. JSC
I was privileged by my learned
brother Onnoghen, JSC,
to have read in advance the lead judgment just delivered by him. I too find
the appeal very unmeritortous. It must fail. I
hereby dismiss the appeal. I abide by the consequential orders made in the
lead judgment including order as to costs.
Counsel
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