IGWEBE v. SAIDASHS INTL. LTD & ANOR

CITATION: (2016) LPELR-41188(CA)

In the Court of AppealIn the Abuja Judicial Division

Holden at Abuja

ON WEDNESDAY, 22ND JUNE, 2016Suit No: CA/A/202/2005

Before Their Lordships:

MOORE ASEIMO A. ADUMEIN Justice, Court of AppealJOSEPH EYO EKANEM Justice, Court of AppealMOHAMMED MUSTAPHA Justice, Court of Appeal

BetweenMRS. CLEMENTINE C. IGWEBE - Appellant(s)

And1. SAIDASHS INTERNATIONAL LTD.2. ABDULRAZAQ ISA - Respondent(s)

RATIO DECIDENDI

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1. APPEAL - INTERFERENCE WITH THE EXERCISE OFDISCRETION: Circumstances in which the appellate court willinterfere with the exercise of discretion made by a trial court"It is the considered opinion of this Court that the trial Courtexercised its discretion judicially and judiciously, and this Courtdoes not see the need or necessity for interfering with a properexercise of discretion; the Supreme Court had this scenario inmind when it held in DOKUBO ASARI V. FRN (2007) LPELR-958-SCthat:"The proper role of a Court of Appeal where there is a properexercise of discretion is not to interfere with the decision. To do somerely on the ground that the appellate Court would haveexercised the discretion differently is an assault on justice and notwithin the statutory powers of the Appeal Court." Per MUHAMMAD,J.S.C."Per MUSTAPHA, J.C.A. (Pp. 22-23, Paras. E-A) - read incontext

2. APPEAL - FRESH POINT(S) ON APPEAL: Whether a party canraise fresh issue(s) on appeal without leave of Court"This Court cannot help but agree with learned senior counsel forthe 1st respondent that the issue of whether consent was soughtand obtained from the minister was not an issue before the trialCourt, and it cannot be sprung here, and now, at least not withoutleave of this Court, see ADIO V. STATE (1986) 2 NWLR (PT.24)581; AJUWON V. ADEOTI (1990) 2 NWLR (PT. 132) 271 andOBIOHA V. DURU (1994) 8 NWLR (PT. 365) 631."Per MUSTAPHA, J.C.A. (P. 34, Paras. C-E) - read in context

3. APPEAL - INTERFERENCE WITH EVALUATION OF EVIDENCE:Circumstance(s) when an Appellate Court cannot/will not interferewith evaluation of evidence made by a Trial Court/Judge"The trial Court is indeed better positioned to appraise theevidence before it, and ascribe to them the needed probativevalue, this Court is least equipped to embark on this venture, andwhere the trialCourt had evaluated and appraised the evidence before it,impeccably as in this case, it is needless to embark on a freshappraisal, in the absence of any perverse finding. See CHINDOWORLDWIDE LTD. V. TOTAL (NIG.) PLC. (2001) 16 NWLR (PT.739)291, (2002) FWLR (PT. 115) 750 AND BOLANLE ABEKE V. STATE(2007) 3 SC PART 2 AT 105."Per MUSTAPHA, J.C.A. (Pp. 34-35,Paras. F-B) - read in context

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4. CONTRACT - COUNTER OFFER: What is a counter offer"An offer has to be accepted without further conditions, becauseany addition to or subtraction to the terms of an offer becomes acounter offer, and thus lead to a rejection of the offer; see BESTNIGERIA LTD V. BLACKWOOD HODGE NIG. LTD (2011) LPELR-776-SC. In AKIYEMI V. ODUA INVESTMENT CO. LTD (2012) LPELR-8270-SC, the Supreme Court cleared any grey areas in the definition ofwhat amounts to a counter offer when it held that: "A counter-offer is an express and unequivocal rejection of the original offerby the offeror to the offeree. It cancels or destroys the original. Itprovides a clean slate, so to say, for the parties to renegotiatetheir forms of contract." Per GALADIMA, J.S.C."Per MUSTAPHA, J.C.A. (Pp. 27-28, Paras. C-A) - read in context

5. CONTRACT - COUNTER OFFER: Nature of a counter offer and itslegal effects"The terms in the offer i.e. Exhibit B were not varied in this caseby Exhibit C; the legal effect of a counter offer is to repudiate ordischarge the original offer so that it cannot subsequently beaccepted by the offeree, and that was not the case here seeOKUBULE V. OYAGBOLA (1990) 4 NWLR PT. 147 PG.723 andAFROTEC TECHNICAL SERVICE (NIG.) LIMITED V. MIA & SONSLIMITED (2000) 12 SC PT.11 PG.1." Per MUSTAPHA, J.C.A. (P. 29,Paras. A-C) - read in context

6. COURT - DISCRETION OF COURT: Meaning of the concept ofdiscretion"...see ASTRA INDUTRIES NIG. LTD V. N.B.C.I (1998) LPELR-565-SCwhere the Supreme Court held: "Discretion means equitabledecision of what is just and proper under the circumstance or aliberty or privilege to decide and act in accordance with what isfair and equitable under the peculiar case guided by the principlesof law." Per ONU, J.S.C. "Per MUSTAPHA, J.C.A. (P. 22, Paras. B-D) -read in context

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7. EQUITABLE REMEDY - SPECIFIC PERFORMANCE: Nature ofthe doctrine of specific performance"The doctrine of specific performance postulates that wheremonetary damages would be an inadequate compensation for thebreach of an agreement, the vendor will be compelled to performspecifically what he has agreed to do. In BFI GROUPCORPORATION V. BUREAU OF PUBLIC ENTERPRISES (2012)LPELR-9339-SC the Supreme Court held: 'It is the rendering asnearly as practicable of a promised performance through ajudgment or decrees; a Court ordered remedy that requiresprecise fulfillment of a legal or contractual obligation whenmonetary damages are inappropriate or inadequate as when thesale of real estate or a rare article is involved. In essence theremedy of specific performance enforces the execution of acontract according to its terms." Per FABIYI, J.S.C."Per MUSTAPHA, J.C.A. (Pp. 18-19, Paras. E-B) - read in context

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8. EQUITABLE REMEDY - SPECIFIC PERFORMANCE: Basis for theremedy of specific performance"... OKONKWO V. OKONKWO & ORS (1998) LPELR-2487-SC that,"...In claims... for specific performance and for rescission ofcontracts, the special relief in equity is only given on conditionthat the plaintiff comes with great promptitude … Any substantialdelay after the negotiations have terminated, such as a year ORprobably less, will be a bar. In cases of rescission the defendantmay be altering his position in the belief that the contract is tostand, and the claim to rescind must be made promptly…” PerMOHAMMED, J.S.C.The trial Court was also right, in the considered opinion of thisCourt to arrive at the conclusion that hardship will be suffered byenforcing the terms of the contract at this stage; "...Specificperformance is a discretionary remedy. This does not mean that itwill be granted or withheld arbitrarily; the discretion is a judicialdiscretion and it is exercised on well settled principles. It meansthat in an action for the specific performance of a contract of theclass usually enforced, the Court may take into accountcircumstances which could not be taken into account in an actionfor damages for breach of contract, such as the conduct of theplaintiff or the hardship which an order for specific performancewill inflict on the defendant." ENOJO v. SANUSI (2008) Pt.412Pg.1084 @ 1089, In UNIVERSAL VULCANIZING NIG. LTD V. IJESHAUNITED TRADING & TRANSPORT & ORS (1992) LPELR-3415-SC itwas also held that:"But a plaintiff will be left to his remedy at law if a decree ofspecific performance would inflict a hardship on the defendant.Consequently the principle is that specific performance willgenerally not be granted where damages would be an adequateremedy. There are exceptions. Also specific performance like allequitable remedies is discretionary and the discretion is exercisedjudicially according to settled principles. So that even where thecontract is valid in law specific performance may be refused ongeneral equitable principles. In other words the Court will onlygrant specific performance where it will be just and equitable todo so. It is not obtainable as of right like damages.” Per KUTIGI,J.S.C; See also OLOWU v. B. S. LTD (2010) 2 NWLR pt. 1178Pg.310."Per MUSTAPHA, J.C.A. (Pp. 19-21, Paras. F-E) - read in context

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9. EQUITY - BONAFIDE PURCHASER FOR VALUE WITHOUTNOTICE: The position of the law with regards to the priority ofinterest of a purchaser for value without notice"A purchaser who entered into possession of land under a contractof sale after payment of the purchase price acquired an equitabletitle of the land, which may be converted into a legal estate byspecific performance; the equitable title can only be defeated by apurchaser of the land for value without notice of the prior equity,the operative word, it should be borne in mind is 'without notice',SEE ELEMA V. AKENZUA 2000 13 NWLR PT 683 PG 92 AND AMINUV. OGUNYEBI 2004 10 NWLR PT 882 PG 45."Per MUSTAPHA, J.C.A.(Pp. 9-10, Paras. F-A) - read in context

10. EQUITY - ORDER OF PRIORITY IN EQUITY: Whether apurchaser who has prior equitable interest will defeat the title of asubsequent legal purchaser"Generally speaking in property law, questions of priority mayarise, and these may concern competing interests in the holdingof the right of occupancy, and it is trite that competing interestsgenerally rank according to the order of their creation; SeeBARCLAYS BANK LTD. V. BIRD (1954) CH. 274. In OWOSHO V.DADA (1984) 7 SC 149, the Supreme Court per Aniagolu JSC heldat 173 that:"The law has been well and long settled, that where a person paysfor land and obtains receipt for the payment followed by his goinginto possession and remaining in possession, equitable interest iscreated for him in the land such as would defeat the title of asubsequent legal estate purchaser with knowledge of theequitable estate in the land, that was affirmed to be the state ofthe law in ORASANMI v. IDOWU (1959) 4 FSC 40; (1959) SCNLR97." The law attributes constructive notice to such a purchaser asa defendant, and goes even further to expect the purchaser of anadjoining land to make enquiries as to title from that other."Per MUSTAPHA, J.C.A. (Pp. 12-13, Paras. D-C) - read in context

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11. EQUITY - BONAFIDE PURCHASER FOR VALUE WITHOUTNOTICE: The position of the law where a plea of bona fidepurchaser for value is being made"In ANIMASHUN V. OLOJO (1990) 6 NWLR (PT. 154) 111 AT 121-123 SC, the SUPREME COURT, per Obaseki, JSC set out the law,and meaning of a bona fide purchaser for value without notice;especially its application, and what constructive notice stands forin the following words:"Without Notice", was held to mean: "He must have no notice ofthe existence of equitable interest. He must have neither actualnotice nor constructive notice nor imputed notice." With regard to“Constructive Notice” it was held that: a "...purchaser shouldinquire about equitable interest with no less diligence than aboutlegal interest which they could ignore only at their own peril. Themotto of English conveyance is caveat emptor; the risk ofencumbrances is on the purchaser who must satisfy himself by afull investigation of title before completing his purchase. Apurchaser would be able to plead absence of notice only if he hadmade all usual and proper inquiries, and had still found nothing toindicate the equitable interest.”Per MUSTAPHA, J.C.A. (Pp. 13-14,Paras. D-C) - read in context

12. EQUITY - BONAFIDE PURCHASER FOR VALUE WITHOUTNOTICE: The position of the law with regards to the priority ofinterest of a purchaser for value without notice"Indeed the whole basis of the equitable principle of bona fidepurchaser for value without notice is to protect a purchaser fromthe fraud of his vendor, see OMOSANYA v. ANIFOWOSHE (1995) 4FSC Pg.94 at 99; but the rule goes further, in the sense that, if apurchaser fails to investigate title properly, he is assumed to haveconstructive notice of everything that he would have discoveredhad he investigated the whole title diligently; See ODWUKWE v.ADMINSTRATOR GENERAL (1978) 1 SC 25 at Pg. 30."Per MUSTAPHA, J.C.A. (P. 15, Paras. A-C) - read in context

13. LAND LAW - POSSESSION OF LAND: Acts that amount topossession of land"For the purposes of the law in these circumstances it is importantto note that cultivation of land, erection of a building line or fence,and even demarcation of land with pegs at its corners have allbeen held to be evidence of possession, see AJERO V. UGORJI1991 10 NWLR PT 621 PG 1 AT PG 14 AND THOMPSON V.AROWOLO 2003 7 NWLR PT 818 PG."Per MUSTAPHA, J.C.A. (P. 10,Paras. B-C) - read in context

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14. LAND LAW - POSSESSION OF LAND: Acts that amount topossession of land"The question of whether any act is sufficient proof of possessionis indeed a question of fact, SEE WUTA-OFEI V. DANQUAH (1961) 1WLR 1238 AT 1243, where it was held that: "The type of conductwhich indicates possession must vary with the type of land. In thecase of vacant and unenclosed land which is not being cultivated,there is little which can be done on the land to indicatepossession. Moreover, the possession which the respondent seeksto maintain is against the appellant who never had any title to theland. In these circumstances the slightest amount of possessionwould be sufficient.” Per PATS-ACHOLONU, J.C.A."Per MUSTAPHA, J.C.A. (Pp. 32-33, Paras. D-A) - read in context

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MOHAMMED MUSTAPHA, J.C.A. (Delivering the

Leading Judgment): This is an appeal against the

judgment of the High Court of the Federal Capital

Territory, Abuja of the 28th of December, 2004, Coram

Justice U.N. Anyanwu, by a notice of appeal dated the 16th

of November, 2004; it is to be heard by an order of this

Court on the briefs of the appellant and the 1st respondent

only.

Briefly stated the facts of the case at the trial were that the

1st respondent offered the appellant Plot 2656 Maitama

Abuja, for sale, but it was later replaced with plot 785 Wuse

2 District, Abuja subject to payment of an additional

payment of N3,000,000, as balance, an earlier payment of

N1.3 was acknowledged, vide Exhibit B.

The appellant while accepting the terms in Exhibit A

insisted on the payment of the N3 million, only on seeing

the Certificate of Occupancy and conducting a search "…as

well as the deed of assignment"; that was interpreted as a

counter offer which vitiated the contract.

Supra Investment Ltd the owner subsequently demarcated

and sold parts of the land in dispute to the 1st and 2nd

respondents, and informed the appellant vide Exhibit F.

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At the trial the plaintiff/appellant sought the following

reliefs:

1. A declaration that the agreement between the 1st

defendant and the plaintiff for the assignment of the

property measuring 12,000 square meters, lying and known

as plot 785 Wuse II District Abuja covered by and more

specifically described and delineated by the Certificate of

Occupancy No. FCT/ABU/MISC.674 dated 15th November

1994 is enforceable by an order of specific performance.

2. An order of specific performance directing the 1st

defendant to perform the agreement to assign to the

plaintiff the property measuring 12.000 square meters

lying and situated at Plot 785 Wuse II, District Abuja

covered by the Cer t i f i ca te o f Occupancy No

FCT/ABU/MISC.674 dated 15th November, 1994 and to

execute all documents necessary to facilitate such

assignment on the terms contained in the defendant's letter

of offer dated 27th November 1992 and the plaintiff's

acceptance thereof by letter dated 4th December 1992.

3a. An order of this Honorable Court authorizing the

plaintiff to pay the balance of the agreed consideration

being the sum of N3,000,000.00 (Three Million) into this

Honorable

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Court and a further order mandating the 1st defendant to

receive the said sum of N3,000,000.00 (Three Million)

from the registrar of this Honourable Court.

3b. An order of this Honorable Court compelling the 1st

and 2nd defendants to hand over to the plaintiff the

O r i g i n a l C e r t i f i c a t e o f O c c u p a n c y N o .

FCT/ABU/MISC.674 and all other documents of

title/consents/approvals relating to the land situated at plot

785 Wuse II District Abuja in the possession of the 1st and

2nd defendants.

4. An order of perpetual injunction restraining the 1st and

2nd defendants, their officers, agents assigns or otherwise

howsoever from interfering with plaintiffs possession of the

said property in its entirety.

5. Damages in the total sum of N10,000,000.00

6. Costs of this action.

The trial Court refused to grant the reliefs sought, leading

to this appeal on the following grounds shorn of their

particulars:

GROUND A:

The learned trial Court erred in law and thereby occasioned

a great miscarriage of justice when it held that:

"To my mind the 2nd and 3rd Defendants had no

reason to suspect any 3rd party interest and the 1st

defendant did not

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inform them of any. The 2nd and 3rd Defendants are

innocent purchasers of Plots from a larger whole

without knowledge of the plaintiff's interest.

GROUND B:

The trial Court erred in law and thereby came to a wrong

conclusion when despite finding as a fact and declaring

"that there was in fact an enforceable contract of sale

between 1st defendant and the plaintiff for the assignment

of the property measuring about 12,000 square meters

lying and known as Plot 785 Wuse II District Abuja covered

by and more specifically described and delineated by the

Certificate of Occupancy No. FCT/ABU/MISC 674 dated

15th November 1994" the learned trial Court felt itself

unable to "order specific performance on the grounds that

the order will cause severe hardships to the 2nd and 3rd

Defendants".

GROUND C:

The learned trial Court misdirected itself and thereby came

to a wrong conclusion when it stated:

“That next question is whether the 2nd and 3rd defendants

had notice or reasonably ought to have notice of the

contract of sale between the plaintiff and the 1st

defendant."

GROUND D:

The learned trial Court erred in law and thereby

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occasioned a miscarriage of justice when it held that:

"The 2nd and 3rd defendants are innocent purchasers

of plots from a larger whole without knowledge of the

plaintiff's interest. However, even if they were aware

of the plaintiff's interest in the land, it can be

reasonable (sic) assumed that the plaintiff was a

buyer like themselves."

GROUND E:

The learned trial Court erred in law and thereby came to a

wrong conclusion when it ordered that the 2nd defendant

deposit the Certificate of Occupancy in respect of the land

in dispute in Court and further ordered "the 1st defendant

is to draw up a Deed of Assignment on behalf of the

plaintiff. Furthermore the 1st defendant will draw up an

agreement for joint custody for all the 3 buyers and the

Certificate of Occupancy deposited in a Bank of the buyers

choice."

GROUND F:

The learned trial Court erred in awarding the sum of

N100,000 as nominal damages.

From these grounds of appeal three issues were formulated

for determination in the brief settled by P.I.N. Ikwueto

Esq., SAN of counsel to the appellant, dated 16th of

September, 2009 and deemed properly filed and served on

the 7th March

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2012; the said issues are:

1. Whether the 2nd and 3rd defendants had any notice or

ough t t o have reasonab l y had no t i ce o f t he

plaintiffs/appellant(sic) interest in the land in dispute and

as such whether the 2nd and 3rd defendants could rightly

be described as innocent purchasers.

2. Whether an order of specific performance in the

circumstance of this case ought to have been decreed by

the trial Court.

3. Whether the learned trial Court rightly grant reliefs not

claimed by any of the parties before it.

The issues formulated for the 1st respondent in the brief

settled by J. Agi Esq., SAN of counsel are fundamentally the

same with those of the appellant, for the purpose of brevity

and clarity the issues for determination are reframed thus:

1. Whether the 2nd and 3rd defendants were bona

fide purchasers for value without notice.

2. Whether an order for specific performance can be

granted in the circumstances.

3. Whether the trial Court rightly granted reliefs not

claimed by any parties before it.

On issue one it is submitted for the appellant that the 2nd

defendant admitted at the trial that she conducted a search

and

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determined that the plot belonged to the 1st defendant, i.e.

Supra Investment Ltd, while the 2nd defendant admitted

that she saw development on parts of the land but did not

make further enquiries from the 1st defendant; while the

3rd defendant admitted knowing only one title document in

respect the plot in dispute, and that the land was not

partitioned as at the time the portion was paid for.

Learned senior counsel referred the Court to JONES V.

SMITH 1 HARA 60, DANIELS V. DAVIDSON 16

VES.249 and KABBA & ANOR V. YOUNG 10 WACA

135 at 139 and contended that notice of the land being in

occupation of a person other than the vendor is notice to a

purchaser that the person in possess on has some interest

in the land, and a purchaser having notice of that fact is

bound either to enquire about the interest or to give effect

to it whatever it may be.

That the trial Court having found the existence of an

enforceable contract between the appellant and the vendor,

i.e. the first defendant, as per Exhibits B and C, was in

error to hold that the 2nd and 3rd defendants had no notice

of the contract of sale between the 1st defendant and the

plaintiff.

That

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a purchaser who admitted seeing buildings on a portion of

land offered to him for sale, and who refused to make

enquires about the title of the vendor cannot be

accommodated by a Court of equity; learned counsel

referred the Court to CLAY IND. NIG. LTD V. AINA &

ORS (1997) 8 NWLR part 516 at 234.

That the land in dispute is one plot measuring 12,000

square meters, and both DW2 and the 2nd respondent

admitted at the trial that it had one document of title.

That this fact having been established the respondents had

constructive notice of the appellants' occupation of plot

785, and in view of the trial Court's findings regarding the

existence of an enforceable contract it still came into an

obvious error by coming to the conclusion that the

respondents were innocent purchasers for value without

notice; learned senior counsel referred the Court to

CRAYEM & ANOR V. CONSOLIDATED AFRICAN

SELECTION TRUST LTD (1949) 2 WACA 443.

It is submitted for the 1st respondent in response that its

evidence at pages 169, 171 and 172 to the effect that

payment was made in respect of a vacant land after

inspection was unchallenged.

That the finding of the

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trial Court to the effect that the 2nd and 3rd defendants

were unaware of a 3rd party interest before purchasing the

plots cannot be faulted, especially in view of the fact that a

search conducted on behalf of the 1st respondent indicated

that the land in dispute belonged to the 1st defendant

without encumbrances.

That the Exhibits B and C cannot constitute notice to the

whole world especially as they were not sent to the land

registry; and the structures claimed to be on the land

belonged to A.A. Oil Ltd, and were demarcated by a fence

as is clear from pages 149 and 150 of the record, so that

fact cannot be said to be enough to put the respondents on

notice.

That the question of bona fide purchaser without notice

was not an issue at the trial Court, and there is no evidence

to show that the 1st respondent had any notice of a 3rd

party interest; he referred the Court to BEST NIG LTD V.

BLACKWOOD HODGE NIG. LTD. (2011).

A purchaser who entered into possession of land under a

contract of sale after payment of the purchase price

acquired an equitable title of the land, which may be

converted into a legal estate by specific performance; the

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equitable title can only be defeated by a purchaser of the

land for value without notice of the prior equity, the

operative word, it should be borne in mind is 'without

notice', SEE ELEMA V. AKENZUA 2000 13 NWLR PT

683 PG 92 AND AMINU V. OGUNYEBI 2004 10 NWLR

PT 882 PG 45.

For the purposes of the law in these circumstances it is

important to note that cultivation of land, erection of a

building line or fence, and even demarcation of land with

pegs at its corners have all been held to be evidence of

possession, see AJERO V. UGORJI 1991 10 NWLR PT

621 PG 1 AT PG 14 AND THOMPSON V. AROWOLO

2003 7 NWLR PT 818 PG.

Against this backdrop it is important to have recourse to

the findings of the trial Court at page 306 of the record of

proceedings that:

“At no time in this proceeding has any of the

defendants denied that the plaintiff was in possession

of 6000 square meters"; at page 309 to 310 of the record

that:

"... it would be wrong to say that the plaintiff was not

at all times in possession of the entire 12,000 square

meters. It appears that several acts of possession has

been exhibited by the plaintiff on the side of the plot

785.

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That the plaintiff restricted herself to one side of the

property cannot be said that she had only acquired

6000 square meters. The plaintiff reserved the right

to start her development from anywhere she deemed

fit. Common sense dictates that she has to start from

one end and progress if she so desires. The mere fact

that she has built on only one part of the 12,000

square meters does not mean that she was not in

possession of the whole plot.”

By the 1st respondents own admission at pages 171:

"On a physical inspection we discovered that the

portion of the land which was indicated to us for sale

was vacant. On part of the 12,000 square meters there

is also a bungalow and 2 or 3 duplexes walled and

demarcated" and at page 173 of the record that:

"...I did not take keen interest in what was going on in

the duplex because there was a wall demarcating

us..."

Now one is tempted to ask when the 1st respondent saw 2

or 3 duplexes "...on the part of the 12,000 square meters

walled and demarcated..." was any enquiry made to find out

the interest? Clearly none, because there was no “…keen

interest in what was going on in the

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duplex…”

Also the evidence of DW2 at pages 171 to 172 of the recordof appeal also shows that "the Certificate of Occupancywas in the respect of Plot 785. The bungalow and theduplexes were also on this plot 785…"

The sight of duplexes in the property in dispute ought tohave served as notice to the 1st respondent of some otherinterest on the land in dispute, but no it didn't; it is evenargued for the 1st respondent that the structures seen onthe land belonged to A.A. Oil Company Ltd.

No evidence supports the 1st respondent's claim that thestructures referred to belong to A.A. Oil Company Ltd; ifanything it was the appellant who claimed to have sold2000 square meters to the said A.A. Oil Company Ltd.

Generally speaking in property law, questions of prioritymay arise, and these may concern competing interests inthe holding of the right of occupancy, and it is trite thatcompeting interests generally rank according to the orderof their creation; See BARCLAYS BANK LTD. V. BIRD(1954) CH. 274.In OWOSHO V. DADA (1984) 7 SC 149, the SupremeCourt per Aniagolu JSC held at 173 that:

"The law has been well and

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long settled, that where a person pays for land and

obtains receipt for the payment followed by his going

into possession and remaining in possession,

equitable interest is created for him in the land such

as would defeat the title of a subsequent legal estate

purchaser with knowledge of the equitable estate in

the land, that was affirmed to be the state of the law

in ORASANMI v. IDOWU (1959) 4 FSC 40; (1959)

SCNLR 97."

The law attributes constructive notice to such a purchaser

as a defendant, and goes even further to expect the

purchaser of an adjoining land to make enquiries as to title

from that other.

In ANIMASHUN V. OLOJO (1990) 6 NWLR (PT. 154)

111 AT 121- 123 SC, the SUPREME COURT, per

Obaseki, JSC set out the law, and meaning of a bona fide

purchaser for value without notice; especially its

application, and what constructive notice stands for in the

following words:

"Without Notice", was held to mean: "He must have no

notice of the existence of equitable interest. He must

have neither actual notice nor constructive notice nor

imputed notice."

With regard to “Constructive Notice” it was held that: a

"...purchaser should

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inquire about equitable interest with no less diligence

than about legal interest which they could ignore only

at their own peril. The motto of English conveyance is

caveat emptor; the risk of encumbrances is on the

purchaser who must satisfy himself by a full

investigation of title before completing his purchase.

A purchaser would be able to plead absence of notice

only if he had made all usual and proper inquiries,

and had still found nothing to indicate the equitable

interest.”

It is clear from the foregoing that the law requires a

purchaser to make proper and adequate enquiry, not only

to conduct a perfunctory legal search, as in this case, but

also to visit the site of the plot before completing the

purchase, and as of necessity, after ...seeing duplexes...",

make further enquiries, which would have revealed the true

position of things; see JIWUL V. DIMLONG (2002)

LPELR-7083-CA.

The plaintiff did not have to place any caveat in the land

registry as contended for the respondent, it is the

responsibility of the respondents to be careful and aware of

what is going on as far as the land in dispute is concerned;

and Exhibits B and C are clearly

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not meant to be notices by any stretch of imagination.

Indeed the whole basis of the equitable principle of bona

fide purchaser for value without notice is to protect a

purchaser from the fraud of his vendor, see OMOSANYA v.

ANIFOWOSHE (1995) 4 FSC Pg.94 at 99; but the rule

goes further, in the sense that, if a purchaser fails to

investigate title properly, he is assumed to have

constructive notice of everything that he would have

discovered had he investigated the whole title diligently;

See ODWUKWE v. ADMINSTRATOR GENERAL (1978)

1 SC 25 at Pg. 30.

The respondents cannot be heard to say the issue of bona

fide purchaser for value was not an issue at the trial,

because it is clear from the record of proceedings that the

issue was indeed raised severally at the trial, and even by

the 1st respondent who for instance said "...if I have seen

Exhibit B and C before the 9th July, 1997 I would

never have bought the land"; and the trial Court found in

part at page 314 of the record of proceedings that: “...to

my mind the 2nd and 3rd defendants had reason to

suspect any 3rd party interest and the 1st defendant

did not inform them of any...”

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The respondents do not clearly qualify as bona fide

purchasers without notice by any standard; accordingly this

issue is resolved in favour of the appellant, against the

respondent.

On issue two it is submitted for the appellant that

notwithstanding the finding of the existence of a an

enforceable contract for sale of plot 785, over which the

appellant was in possession the trial Court held it was

unable to order specific performance on the ground that it

will cause severe hardship to the 2nd and 3rd defendants,

whom it found to be innocent purchasers for value without

notice of the plaintiff's equitable interest.

That it is wrong to describe the respondents as bona fide

purchasers when the 1st respondent admitted seeing

duplexes on this plot and did not make enquires about

them.

Learned senior counsel submitted also that the 3rd

defendant admitted that she continued construction even

while the case was in Court in direct contravention of the

doctrine of lis pendis; he referred the Court to BARCLAYS

BANK OF NIG. LTD V. ASHIRU & ORS (1978) 6 & 7 at

123, F.A.T.B. V EZEGBU (1992) 1 NWLR part 220 at

724, AJOMALE V. YAUDAT 2 (1991) 5 NWLR

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part 191 page 266 and AMAECHI V. INEC (2008) 5

NWLR part 1080 at 227.

That the hardship for which the trial Court refused to order

specific performance was self-induced, because the

respondents having noticed the appellant s occupation, and

the presence of buildings on a portion of the land in dispute

should have refrained from construction during the

pendency of the case.

That the hardship which will constitute a defense to a claim

of specific performance must have existed at the date of the

contract and not invented during the pendency of litigation;

he referred the Court to NICHOLAS V. INGRAM (1958)

N.Z.L.R 972.

That even though specific performance is a discretionary

remedy none of the respondents pleaded nor sought any

indulgence on the basis of hardship and the introduction of

hardship as a defense was an invention of the trial Court.

In response it is submitted for the 1st respondent that

specific performance is an equitable remedy purely at the

discretion of the Court, and where it is impossible to grant

the Courts will refuse to grant same; learned counsel

referred the Court to INT. TEXTILE IND, NIG. V.

ADEREMI (1999) 8 NWLR part

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614 at 304.

That the appellant became aware in 1993 that her contract

for 12000 square meters had been reduced to 6000 square

meters but did nothing until 1997 when the 1st respondent

made payment for its portion of the land; and the appellant

now wants specific performance of a contract that was

abandoned; learned counsel referred the Court to C.F.A.O

V. BAMGBALA (1969) 6 NSCC 259 at 262.

Learned senior counsel submitted that the appellant who

waited for four years to ask for specific performance of a

contract is guilty of delay, and that is what informed the

refusal by the trial Court; he referred the Court to

UNIVERSAL VULCANIZING NIG. LTD V. IJESHA

TRADING & TRANSPORT & ORS (1992) NWLR PT

266.

The doctrine of specific performance postulates that where

monetary damages would be an inadequate compensation

for the breach of an agreement, the vendor will be

compelled to perform specifically what he has agreed to do.

In BFI GROUP CORPORATION V. BUREAU OF

PUBLIC ENTERPRISES (2012) LPELR-9339-SC the

Supreme Court held: 'It is the rendering as nearly as

practicable of a promised performance through a

judgment or decrees; a Court ordered

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remedy that requires precise fulfillment of a legal or

contractual obligation when monetary damages are

inappropriate or inadequate as when the sale of real

estate or a rare article is involved. In essence the

remedy of specific performance enforces the

execution of a contract according to its terms." Per

FABIYI, J.S.C.

The land in dispute had clearly been sold to the 2nd and

3rd defendants, see page 315 of the record of appeal,

where the trial Court held, "...there is no longer in

existence the res to hand over to the plaintiff having

been bought by the 2nd and 3rd defendant..."; who had

gone ahead to developed same; and the appellant did not

help by waiting for up to four years to ask for specific

performance; this is evident from the fact that even though

the appellant became aware in 1993 that her contract for

12,000 square meters had been reduced to 6000 square

meters she did nothing until when the 1st respondent paid

for its portion of the land in 1997; it is for such reasons that

the Supreme Court held in OKONKWO V. OKONKWO &

ORS (1998) LPELR-2487-SC that, "...In claims... for

specific performance and for rescission of contracts,

the special

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relief in equity is only given on condition that the

plaintiff comes with great promptitude … Any

substantial delay after the negotiations have

terminated, such as a year OR probably less, will be a

bar. In cases of rescission the defendant may be

altering his position in the belief that the contract is

to stand, and the claim to rescind must be made

promptly…” Per MOHAMMED, J.S.C.

The trial Court was also right, in the considered opinion of

this Court to arrive at the conclusion that hardship will be

suffered by enforcing the terms of the contract at this

stage;

"...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

it 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." ENOJO v.

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SANUSI (2008) Pt.412 Pg.1084 @ 1089,

In UNIVERSAL VULCANIZING NIG. LTD V. IJESHA

UNITED TRADING & TRANSPORT & ORS (1992)

LPELR-3415-SC it was also held that:

"But a plaintiff will be left to his remedy at law if a

decree of specific performance would inflict a

hardship on the defendant. Consequently the

principle is that specific performance will generally

not be granted where damages would be an adequate

remedy. There are exceptions. Also specific

performance like all equitable remedies is

discretionary and the discretion is exercised judicially

according to settled principles. So that even where

the contract is valid in law specific performance may

be refused on general equitable principles. In other

words the Court will only grant specific performance

where it will be just and equitable to do so. It is not

obtainable as of right like damages.” Per KUTIGI, J.S.C;

See also OLOWU v. B. S. LTD (2010) 2 NWLR pt. 1178

Pg.310.

So on this score the emphasis is clearly not on whether the

respondents were bona tide purchasers for value without

notice, they clearly were not, and that was settled while

resolving issue one; but whether the

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trial Court was right in failing to exercise its discretion in

favour of the appellant, to grant an order of specific

performance, and this Court cannot help but agree with the

trial Court for refusing to grant an order for specific

performance, after having found that hardship will be

occasioned.

This is the essence of discretionary power, which empowers

the judge to do what he thinks right and proper in the

circumstances of the case; see ASTRA INDUTRIES NIG.

LTD V. N.B.C.I (1998) LPELR-565-SC where the

Supreme Court held:

"Discretion means equitable decision of what is just

and proper under the circumstance or a liberty or

privilege to decide and act in accordance with what is

fair and equitable under the peculiar case guided by

the principles of law." Per ONU, J.S.C.

It is the considered opinion of this Court that the trial Court

exercised its discretion judicially and judiciously, and this

Court does not see the need or necessity for interfering

with a proper exercise of discretion; the Supreme Court

had this scenario in mind when it held in DOKUBO ASARI

V. FRN (2007) LPELR-958-SC that:

"The proper role of a Court of Appeal where there

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is a proper exercise of discretion is not to interfere

with the decision. To do so merely on the ground that

the appellate Court would have exercised the

discretion differently is an assault on justice and not

within the statutory powers of the Appeal Court." Per

MUHAMMAD, J.S.C.

This issue is accordingly resolved in favour of the 1st

respondent, against the appellant.

Issue number three does not need to be belaboured,

because the 1st respondent has conceded that issue to the

appellant, that being so the issue is resolved in favour of

the appellant, against the 1st respondent.

Even though two of the three issues for determination were

resolved in favour of the appellant, and against the 1st

respondent, the threshold issue is issue number two, and

that was resolved in favour of the 1st respondent, that

being so the appeal fails for that reason. The judgment of

the trial Court is affirmed.

Parties to bear their respective costs.

CROSS APPEAL:

The Cross Appeal in this case was initiated by the Notice of

Cross Appeal filed on the 5th of April, 2012, and deemed

properly filed on the 18th of October, 2012 on the following

grounds:

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GROUND ONE:

The Learned Trial Judge erred in law when he held that “it

would be wrong to say that the plaintiff was not at all

times in possession of the entire 12,000 square

meters”.

GROUND TWO:

The Learned Trial Judge erred in law when he held that

"with this confirmation by the 1st Defendant it can be

deciphered that parties to the contract were at

consensus ad idem that the Certificate of Occupancy

was important to the conclusion of the contract

terms".

GROUND THREE:

The Learned Trial Judge erred in law when she held that

"at no point in the transaction did the 1st Defendant

indicate that she was ready with the documents and

balance of N3 million (Three Million Naira) was not

paid."

From these grounds two similar issues were formulated for

determination by both the Cross Appellant and the 1st

Cross Respondent; the issue formulated in the brief settled

by Joe Agi Esq., SAN of counsel to the cross appellant are

more apt, this appeal will be determined on those issues

with a little modification for clarity, and they are as follows:

1. Whether a perusal of Exhibit C and Juxtaposing it

with Exhibit B did not

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amount to a counter offer or conditional acceptance

thereby failed to create a contract between 1st Cross

Respondent and Supra Investment Limited leading to

the termination of the contract through Exhibit G.

2. Whether the 1st Cross Respondent can be said to

be in possession of the whole 12,000 square meters of

plot 785 C-G Wuse II District Abuja.

On issue one it is submitted for the cross appellant while

referring to Exhibits B and C that the term introduced by

the 1st respondent i.e. that the balance will be paid "...as

soon as you indicate that you have the Certificate of

Occupancy ready for sighting...to enable conduct of

conclusive search of the tile...", amounted to a counter offer

or qualified or conditional acceptance.

Learned senior counsel while referring to LAWAL V. UBN

PLC (1995) 2 NWLR part 378 at 31, DALEK NIG. V.

OMPADEC (2007) 7 NWLR part 1033 at 402 and

OKUBULE V. OYAGBOLA (1990) 4 NWLR part 147 at

723 and submitted that there was no acceptance of the

offer made by Supra Investment Ltd.

That there was no valid contract between the 1st Cross

Respondent and Supra Investment Ltd from the contents

Exhibits B and C, because a

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search presupposes that there is yet to be a contract.

That the acceptance of the contract was not unqualified,

and so the 1st cross respondent cannot claim to have a

valid contract of sale to preclude the cross appellant from

buying the land, as the cross appellant is clearly a bona fide

purchaser for value without notice; learned counsel

referred the Court to INTERNATIONAL INDUSTRIES

LTD V. ADEREMI (1999) 8 NWLR part 614.

In response it is submitted for the 1st cross respondent that

the cross appellant was wrong to assume that accepting the

offer i.e. Exhibit C on the condition that the balance will

be paid as soon as the Certificate of Occupancy was

obtained and appropriate search conducted amounts to a

counter offer which vitiated the earlier offer.

That Exhibit G cannot be said to bring the contract

between the 1st Cross Respondent and Supra Investment

Ltd to an end, because at best it amounted to a breach of

the contract between the 1st cross respondent and Supra

Investment Ltd; learned counsel referred the Court to

LIMAN V. MOHAMMED (1999) 9 NWLR part 617 at

132.

That Exhibit B was not made subject to contract because

there was every

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intention by Supra Investment Ltd to transfer the whole of

the 12,000 square meters to the 1 cross respondent, and

that is what informed the why the 1st respondent was

allowed to take possession and start development of the

land with the knowledge of Supra Investment Ltd; learned

counsel referred this Court to OGUNBAMBI V. ABOWAB

(1951) 13 WACA 222 at 224.

It is very important for the effectual resolution of this issue

to understand what a counter offer is in law, in order to

determine whether or not Exhibit C amounted to a counter

offer capable of vitiating Exhibit B.

An offer has to be accepted without further conditions,

because any addition to or subtraction to the terms of an

offer becomes a counter offer, and thus lead to a rejection

of the offer; see BEST NIGERIA LTD V. BLACKWOOD

HODGE NIG. LTD (2011) LPELR-776-SC.

In AKIYEMI V. ODUA INVESTMENT CO. LTD (2012)

LPELR-8270-SC, the Supreme Court cleared any grey

areas in the definition of what amounts to a counter offer

when it held that:

"A counter-offer is an express and unequivocal

rejection of the original offer by the offeror to the

offeree. It cancels or destroys the original. It

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provides a clean slate, so to say, for the parties to

renegotiate their forms of contract." Per GALADIMA,

J.S.C.

Now the question left for determination is whether Exhibit

C was clear and unequivocal enough to be called a counter

offer, and thus vitiated the terms of Exhibit B.

It is very important at this juncture to have recourse to the

relevant portions of Exhibits B and C which for the

avoidance of doubt read as follows:

Exhibit B: "we acknowledge receipt of earlier payment

of N1,300,000 in respect thereof. The balance of N3,

000,000, is payable in full before the signing and

exchange of documents."

Exhibit C: "the balance of N3,000,000 will be paid as

soon as you indicate that you have the Certificate of

Occupancy ready for sighting with photocopy made

available to enable the conduct of conclusive search

of the title as well as the deed of assignment, and

hold same pending payment of the full purchase

price."

Clearly from the content and character of Exhibit C it is

self-evident that it is not an unequivocal revocation or

renunciation of Exhibit B, if anything it reinforces it

emphasizing that payment of the balance would be made

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upon proper verification; because title documents are never

ever signed and exchanged without an ascertained

certificate of title.

The terms in the offer i.e. Exhibit B were not varied in this

case by Exhibit C; the legal effect of a counter offer is to

repudiate or discharge the original offer so that it cannot

subsequently be accepted by the offeree, and that was not

the case here see OKUBULE V. OYAGBOLA (1990) 4

NWLR PT. 147 PG.723 and AFROTEC TECHNICAL

SERVICE (NIG.) LIMITED V. MIA & SONS LIMITED

(2000) 12 SC PT.11 PG.1.

The trial Court was right in the considered opinion of this

Court in arriving at the conclusion that Exhibit C did not

amount to a counter offer, and that clearly informed its

clear finding at Page 300 that:

"the Court from all the evidence adduced by both the

PW1 and DW1 deduced that there was a legally

binding contract between the plaintiff and the 1st

defendant as per Exhibits B and C. Exhibit C is not a

counter offer, as it has not introduced anything new

to both the 1st defendant and the plaintiff, which can

'kill off' the offer." And also that page 314 of the record

of appeal also that:

"Exhibits B and C

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have created a binding and enforceable contract

between the 1st defendant and the plaintiff. The

plaintiff and the 1st defendant are consensus ad idem

as to all the terms of the contract."

This issue is accordingly resolved in favour of the 1st Cross

Respondent, and against the Cross Appellant.

On issue two it is submitted for the cross appellant that the

1st cross respondent was not in possession of the entire

12,000 square meters of land, having held herself to one

side of the land fount by the trial Court.

That the finding by the trial Court in one breathe that the

plaintiff was in full possession of the entire land, and in

another breath that the plaintiff had confined herself to one

side of the land was contradictory and therefore perverse.

That both the plaintiff and Supra Investment claim to be in

possession of the plot in dispute, and so the one in

possession has better title, i.e. Supra Investment Ltd, and

was planning on selling to the 1st cross respondent, who is

now claiming to have a better title than the person trying to

sell to it; learned senior counsel argued this cannot be

allowed to stand, he referred the Court to AROMIRE

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V. AWOYEMI (1972) 2 SC 182 and AMAKOR V.

OBIEFUNA (1974) 1 ALL NLR 119.

Learned senior counsel contended that the 1st cross

respondent has no title at all, much less a superior one;

especially as there was no indication anywhere that

consent of the minister was sought and obtained.

It is submitted for the 1st cross respondent in response that

whether an act is sufficient to qualify as possession is a

question of fact to be decided by the Court, learned senior

counsel referred the Court to LADIPO & ORS V. AJANI &

ANOR (1997) 8 NWLR part 517 at 367 and BASSIL V.

FAJEBE (2001) 21 WRN at 85; and argued that the trial

Court clearly determined that the 1st cross respondent was

in possession of plot 785.

That Supra Investment Ltd having sold the land to the 1st

cross respondent cannot at the same time be in possession

of the land in dispute, especially after handing over

possession to the 1st cross respondent who erected

buildings thereon; learned senior counsel referred the

Court to OVERSEAS CONSTRUCTION LTD V. CREEK

ENTERPRISES LTD (1985) 2 NSCC Vol. 16 at 1381.

On the question of whether consent of the minister was

sought and obtained

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learned senior counsel submitted it that this was an issue

that is being raised for the first time on appeal without

leave of Court, he urged the Court to discountenance same;

and further contended consent is only due after deed of

assignment is executed; he referred the Court to YARO V.

AREWA CONSTRUCTION LTD (2007) 17 NWLR part

1063 at 374 and FBN PLC V. SONOGONUGA (2007) 3

NWLR part 1021 at 230.

That also this Court cannot re-appraise the evidence

especially as the findings of the trial Court are not

perverse, learned senior counsel referred the Court to

SCCNG. LTD V. ELEMADU (2005) 7 NWLR part 923 at

83, ANYAKORA V. OBIAKOR (2005) 5 NWLR part 919

at 529 and AGUOCHA V. AGUOCHA (2005) 1 NWLR

part 906 at 192.

The question of whether any act is sufficient proof of

possession is indeed a question of fact, SEE WUTA-OFEI

V. DANQUAH (1961) 1 WLR 1238 AT 1243, where it

was held that:

"The type of conduct which indicates possession must

vary with the type of land. In the case of vacant and

unenclosed land which is not being cultivated, there

is little which can be done on the land to indicate

possession. Moreover, the possession which the

respondent

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seeks to maintain is against the appellant who never

had any title to the land. In these circumstances the

slightest amount of possession would be sufficient.”

Per PATS-ACHOLONU, J.C.A.

The trial Court found at page 306 of the record of appeal

that:

"at no time in this proceedings has any of the

defendants denied that the plaintiff was in possession

of 6000 square meters. The 1st defendant is insisting

that the plaintiff only had possession of about 6000

meters..."

Again at page 309 it further found:

"It would be wrong to say that the plaintiff was not at

all times in possession of the entire 12,000 square

meters.

It appears that several acts of possession has been

exhibited by the plaintiff on the side of the plot 785.

That the plaintiff restricted herself to one side of the

property cannot be said she had only acquired the

6,000 square meters. The plaintiff reserved the right

to start her development from anywhere she deemed

fit.

Common sense dictates that she has to start from one

end and progress if she so desires. The mere fact that

she has built on only one part of the 12,000 square

meters does not mean that she

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was not in possession of the whole plot."

Now it is very clear from these findings that the trial Court

found the 1st cross respondent in possession of the plot in

dispute, thus resolving the issue of possession of the land in

dispute by the 1st cross appellant to all intents purposes.

This Court is in total agreement with the trial Court in this

regard, and finds the evaluation of facts and conclusions

impeccable; because not only was the 1st cross respondent

in possession but went ahead and erected structures on the

land.

This Court cannot help but agree with learned senior

counsel for the 1st respondent that the issue of whether

consent was sought and obtained from the minister was not

an issue before the trial Court, and it cannot be sprung

here, and now, at least not without leave of this Court, see

ADIO V. STATE (1986) 2 NWLR (PT.24) 581; AJUWON

V. ADEOTI (1990) 2 NWLR (PT. 132) 271 and OBIOHA

V. DURU (1994) 8 NWLR (PT. 365) 631.

The trial Court is indeed better positioned to appraise the

evidence before it, and ascribe to them the needed

probative value, this Court is least equipped to embark on

this venture, and where the trial

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Court had evaluated and appraised the evidence before it,

impeccably as in this case, it is needless to embark on a

fresh appraisal, in the absence of any perverse finding. See

CHINDO WORLDWIDE LTD. V. TOTAL (NIG.) PLC.

(2001) 16 NWLR (PT.739) 291, (2002) FWLR (PT.

115) 750 AND BOLANLE ABEKE V. STATE (2007) 3

SC PART 2 AT 105.

For these reasons, this issue too is resolved in favour of the

1st Cross Respondent, and against the Cross Appellant; and

having resolved both issues against the Cross Appellant,

the Cross Appeal fails for lack of merit, and it is hereby

dismissed. The decision of the trial High Court of the

Federal Capital Territory, dated 28th of December, 2004 is

hereby affirmed.

Parties to bear their respective costs.

MOORE ASEIMO A. ADUMEIN, J.C.A.: I read before

now the judgment just delivered by my learned brother,

Mohammed Mustapha, JCA.

I agree with the reasoning and conclusions of my learned

brother that both the appeal and cross appeal lack merit

and ought to be dismissed. I hereby dismiss both the appeal

and cross appeal. I affirm the judgment of the lower Court.

There is no order for costs.

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JOSEPH EYO EKANEM, J.C.A.: I read in its draft form

the judgment which has just been delivered by my learned

brother, Mustapha, JCA. I agree with my Lord's conclusion

that the appeal and the cross - appeal fail.

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