Legalpedia Citation: (2024-03) Legalpedia 02306 (SC)

In the Supreme Court of Nigeria

Fri Mar 8, 2024

Suit Number: SC.38/2009

CORAM

Kudirat Motonmori Olatokunbo Kekere-Ekun Justice, Supreme Court

Mohammed Lawal Garba Justice, Supreme Court

Helen Moronkeji Ogunwumiju Justice, Supreme Court

Adamu Jauro Justice, Supreme Court

Tijjani Abubakar Justice, Supreme Court

PARTIES

1. OLUSOLA ORIOKE

APPELLANTS

1. ALHAJI FATAI KUNLE ONAYEMI
2. MR. GBADEBO IDOWU
3. MR. E.B. EKUNSEITAN
4. MRS. ELSIE FOLUDO AKINTOYE
5. MRS. ALAKE ASIWAJU DADA
6. ATTORNEY GENERAL & COMMISSIONER FOR JUSTICE, OYO STATE

RESPONDENTS

AREA(S) OF LAW

SUMMARY OF FACTS

The 3rd, 4th, and 5th respondents inherited a property located at Oke-Bola, Ibadan, Oyo State, from their late father, Emmanuel Ajayi Ekunseitan, who died in 1960. The 2nd respondent (the 1st defendant at the trial court) is an estate agent commissioned by the 3rd, 4th, and 5th respondents to find a buyer for the house. According to the 2nd respondent, the 1st respondent was interested in purchasing the property. After negotiations, it was agreed that the purchase price would be N750,000.00, payable in two installments. The first installment of N500,000.00 was paid on February 10, 1995, and the balance was paid on September 29, 1995.

The 2nd respondent claimed that when the first cheque for N500,000.00 was cashed, the money was shared among the 3rd, 4th, and 5th respondents. However, while the 4th and 5th respondents collected their shares, the 3rd respondent did not and asked the 2nd respondent to keep his share until the full purchase price was paid. When the balance of N250,000.00 was received, the 2nd respondent informed the 3rd respondent, who then indicated that he was no longer interested in the transaction, as he had found a new buyer willing to pay N800,000.00 for the property. The 3rd respondent showed the 2nd respondent a cheque from the new buyer, issued on October 3, 1995, and asked him to return the N750,000.00 to the 1st respondent. The buyer who paid N800,000.00 was joined as the 6th defendant at the trial court on April 26, 1998, and is the present appellant in this appeal.

The 1st respondent was dissatisfied with the situation, having fulfilled his part of the contract without receiving the property. It was argued that the 3rd respondent refused to finalize the documents, prompting the 1st respondent to file a lawsuit at the trial court.

The 1st, 2nd, 5th, and 6th defendants filed their pleadings, while the 3rd and 4th defendants did not. The 1st respondent filed a caution at the Ministry of Lands, Housing, and Physical Planning, Oyo State, against the grant of any statutory Right of Occupancy for the disputed property. Despite the caution, a deed of assignment was executed between the 3rd respondent and the appellant and duly registered at the Lands Registry, seemingly to render any court decision moot. The doctrine of lis pendens was invoked.

The 3rd respondent argued that as the head of the family and sole surviving administrator of their late father’s estate, he had the right to sell the property without the other family members’ consent.

At the conclusion of the trial and after considering counsel’s arguments, the learned trial judge awarded the plaintiff N1 million (One Million Naira) in damages for breach of contract, as specific performance could not be ordered. The 1st respondent was dissatisfied with the judgment and appealed, arguing that the trial court erred in not granting an order of specific performance. The appeal was allowed.

The appellant, aggrieved by this decision, filed the instant appeal.

HELD

Appeal allowed

ISSUES

 Whether on the available materials and the state of the law, the Court of Appeal was right when it made an order for specific performance for the sale of the property in favour of the 1st respondent against the 3rd, 4h and 5th respondents?

RATIONES DECIDENDI

CROSS-APPEAL – WHETHER RESPONDENTS WHO DID NOT CROSS-APPEAL CAN SEEK RELIEFS BEFORE THE COURT

It is pertinent to note that in the absence of a cross-appeal, the 4th and 5th respondents are not entitled to seek any relief from this Court beyond the dismissal of the appeal. Their role is to defend the judgment appealed against. – Per K. M. O. Kekere-Ekun, JSC

CROSS-APPEAL – THE ROLE OF RESPONDENTS WHO DID NOT CROSS-APPEAL

It is pertinent to note that in the
absence of a cross-appeal, the 4th and 5th respondents are not entitled to seek
any relief from this Court beyond the dismissal of the appeal. Their role is to
defend the judgment appealed against. –
Per K. M. O. Kekere-Ekun, JSC

SPECIFIC PERFORMANCE – WHERE THE COURT WOULD NOT GRANT AN ORDER OF SPECIFIC PERFORMANCE

It is correct, as submitted by learned counsel for the appellant, that the grant of an order for specific performance is an equitable remedy granted at the Court’s discretion after taking into account all the facts and circumstances of the case. Being an equitable relief, it has been held that an order for specific performance will not be made where the plaintiff would be adequately compensated by the common law remedy of damages. It was held in Ezenwa Vs Oko (2008) LPELR – 1206 (SC) © 17 D – F, that the jurisdiction to order specific performance is anchored on the inadequacy of the remedy of damages at law. It was held in Universal Valcanizing (Nig) Ltd Vs Ijesha United Trading & Transport Co, Ltd (1992) LPELR – 3415 (SC) @ 37 A – B, that even where the contract is valid in law, specific performance may be refused on general equitable principles. It was held that specific performance is not obtainable as of right, like damages. It will only be ordered where it is just and equitable to do so. Specific performance may also be refused in case of severe hardship to the defendant.  – Per K. M. O. Kekere-Ekun, JSC

SPECIFIC PERFORMANCE – THE CONDITION FOR A GRANT OF SPECIFIC PERFORMANCE

It is also settled law that there can be no order for specific performance unless there is a definite and certain contract between the parties to the suit before the Court. SeeOloja & Ors, Vs Governor, Benue State & Ors, (2021) LPELR – 55634 (SC) @ 23-24, Best (Nig) Ltd Vs Blackwood Hodge (Nig) Ltd & 2 Ors, (2011) 1-2 SC (Pt.1) 55, Nlewedim Vs Uduma (1995) 6 SCNJ 72, Help (Nig) Ltd Vs Silver Anchor (Nig) Ltd (supra).  – Per K. M. O. Kekere-Ekun, JSC

APPELLATE – CONDUCT OF APPELLATE COURTS WHERE THE DECISION OF A LOWER COURT IS CORRECT ALTHOUGH FOUNDED ON WRONG REASONS

It is also pertinent to state that the decision of a lower Court will not be overturned by an appellate Court where the conclusion is correct although the reasons may be wrong. See Kwara State Judicial Service Commission & Ors. Vs Miss Yetunde Zainab Tolani (2019) LPELR – 47539 (SC) @ 20 A – C, Mainstreet Bank Capital Ltd. Vs Nigeria Re-Insurance Corporation Plc (2018) LPLR – 44905 (SC) @ 27-28 F – B, Ndayako Vs Dantoro (2004) LPELR – 1968 (SC) @ 32 A – B, A.I.C. Ltd Vs NNPC (2005) LPELR – 6(SC) @ 40-41 E – A. – Per K. M. O. Kekere-Ekun, JSC

ALTERNATE RELIEFS – WHY PARTIES EXPLORE ALTERNATE RELIEFS WHEN CLAIMING RELIEFS

In the case of International Textile Industries Nig. Ltd Vs Aderemi (supra), the rationale for including a claim for damages as an alternative to a claim for specific performance was explained by Uwaifo, JSC with reference to the dictum of O’ Bryan, J. in the Supreme Court of Victoria case of Mckenna Vs Rictey (1950) VLR 360 @ 372, to wit:

“The apparent inconsistency of a plaintiff suing for specific performance and common law damages in the alternative arises from the fact that in order to avoid circuity of action, there is vested in one Court, jurisdiction to grant either form of relief. The plaintiff is in effect saying:

“I don’t accept your repudiation of the contract but am willing to perform my part of the contract and insist in your performing your part – but if I cannot successfully insist on your performing your part, I will accept the repudiation and ask for damages.”

Until the defendant’s repudiation is accepted, the contract remains on foot, with all the possible consequences of that fact. But if from first to last, the defendant continues unwilling to perform her part of the contract, then, if for any reason the contract cannot be specifically enforced, the plaintiff may, in my opinion, turn round and say: “very well, I cannot have specific performance, I will now ask for my alternative remedy of damages at common law.”

This, in my opinion, is equally applicable both before and after the decree whether the reason for the refusal or the failure of the decree of specific performance is due to inability of the defendant to give any title to the property sold or to the conduct of the plaintiff, which makes it inequitable for contract to be specifically enforced.”

His Lordship, Uwaifo, JSC, continued thus:

“There is no doubt in my mind that the above stated passage correctly represents the law on the matter. He has, of course, in that event, two alternatives open to him. He knows that if specific performance fails, then he can sue for damages, which is the other. As the order for specific performance is an equitable remedy and therefore discretionary, it will, in my view, be a grave error of pleading to claim for specific performance without at the same time, in the alternative claiming for damages.

As has been said, even after a decree of specific performance has been granted, it can turn out that the defendant cannot give title to the property sold. In that case, a plaintiff who failed to claim for damages in the alternative will be in a quagmire…

Impossibility of performance of the contract by a defendant is a defence to a claim for specific performance, even though the contract is unconditional both in terms and in intention. See Ferguson Vs Wilson (1866) 2 CH. APP 77. One such impossibility is when the property, the subject matter of the contract has been sold to a third person. See Denton Vs Stewart (1786) 1 Co. X Eq. Cas 258, or where necessary consent for concluding the transaction has not been, or is [not] likely to be obtained…

It has been held that impossibility of performance does not cease to be a defence to specific performance simply because the impossibility is due to the defendant’s act…

In such a case, however, impossibility is no excuse for non-performance and the defendant is liable in damages.” – Per K. M. O. Kekere-Ekun, JSC

DAMAGES – WHY IT IS IMPORTANT TO ALSO CLAIM FOR DAMAGES WHEN SEEKING SPECIFIC PERFORMANCE

In the case of International Textile Industries Nig. Ltd Vs Aderemi (supra), the rationale for including a claim for damages as an alternative to a claim for specific performance was explained by Uwaifo, JSC with reference to the dictum of O’ Bryan, J. in the Supreme Court of Victoria case of Mckenna Vs Rictey (1950) VLR 360 @ 372, to wit:

“The apparent inconsistency of a plaintiff suing for specific performance and common law damages in the alternative arises from the fact that in order to avoid circuity of action, there is vested in one Court, jurisdiction to grant either form of relief. The plaintiff is in effect saying:

“I don’t accept your repudiation of the contract but am willing to perform my part of the contract and insist in your performing your part – but if I cannot successfully insist on your performing your part, I will accept the repudiation and ask for damages.”

Until the defendant’s repudiation is accepted, the contract remains on foot, with all the possible consequences of that fact. But if from first to last, the defendant continues unwilling to perform her part of the contract, then, if for any reason the contract cannot be specifically enforced, the plaintiff may, in my opinion, turn round and say: “very well, I cannot have specific performance, I will now ask for my alternative remedy of damages at common law.”

This, in my opinion, is equally applicable both before and after the decree whether the reason for the refusal or the failure of the decree of specific performance is due to inability of the defendant to give any title to the property sold or to the conduct of the plaintiff, which makes it inequitable for contract to be specifically enforced.”

His Lordship, Uwaifo, JSC, continued thus:

“There is no doubt in my mind that the above stated passage correctly represents the law on the matter. He has, of course, in that event, two alternatives open to him. He knows that if specific performance fails, then he can sue for damages, which is the other. As the order for specific performance is an equitable remedy and therefore discretionary, it will, in my view, be a grave error of pleading to claim for specific performance without at the same time, in the alternative claiming for damages.

As has been said, even after a decree of specific performance has been granted, it can turn out that the defendant cannot give title to the property sold. In that case, a plaintiff who failed to claim for damages in the alternative will be in a quagmire…

Impossibility of performance of the contract by a defendant is a defence to a claim for specific performance, even though the contract is unconditional both in terms and in intention. See Ferguson Vs Wilson (1866) 2 CH. APP 77. One such impossibility is when the property, the subject matter of the contract has been sold to a third person. See Denton Vs Stewart (1786) 1 Co. X Eq. Cas 258, or where necessary consent for concluding the transaction has not been, or is [not] likely to be obtained…

It has been held that impossibility of performance does not cease to be a defence to specific performance simply because the impossibility is due to the defendant’s act…

In such a case, however, impossibility is no excuse for non-performance and the defendant is liable in damages.” – Per K. M. O. Kekere-Ekun, JSC

DAMAGES – WHETHER A PARTY IS ENTITLED TO DAMAGES WHERE THE NECESSARY CONSENT FOR CONCLUDING A TRANSACTION HAS NOT BEEN GIVEN OR IS UNLIKELY TO BE GIVEN

As observed by this Court in International Textile Industries (Nig) Ltd Vs Aderemi (supra), where the necessary consent for concluding the transaction has not been given, or is unlikely to be given because the property has been sold to a third person, the plaintiff would be entitled to the alternative remedy of damages for breach of contract, where he has sought the said relief. – Per K. M. O. Kekere-Ekun, JSC

ALTERNATIVE RELIEFS – CONDUCT OF COURTS WHERE ALTERNATIVE RELIEFS ARE SOUGHT

In Help (Nig) Ltd Vs Silver Anchor Nig, Ltd (supra) @ 222 E – F, His Lordship Mukhtar, JSC (as he then was, Later CJN) held:

“When a party makes a claim in the alternative, the belief is that he wants either of the reliefs sought, in which case, when he is granted any of the reliefs, it suffices for the purpose of satisfying his claim.”

In Nwoye Vs FA.A.N. (supra), it was held, inter alia, per Kekere-Ekun, JSC at 44 A – C:

“An alternative relief arises in an “either/or” situation. If the main relief is granted, there would be no need to consider the alternative relief. If the main relief is refused, the Court would be obliged to consider whether the claimant is entitled to any of the alternative reliefs. The alternative reliefs are part and parcel of the claim but would only be considered where the main claim has been considered and refused.” – Per K. M. O. Kekere-Ekun, JSC

SPECIFIC PERFORMANCE – WHERE A PARTY HAS BEEN GRANTED AN ALTERNATIVE RELIEF

Being an equitable remedy in law, the grant of specific performance in matters of contract, involves the exercise of the judicial discretion of a Court which imports the consideration of the equal interest of both sides to the contract and weighing them in order to arrive at a fair, just and equitable decision. Having been granted the alternative relief he sought for the breach of the contract, as a remedy considered by him to be adequate in the event that the main relief of specific performance could not be granted on any cognizable ground in law, even if made out, it would clearly be inequitable for the 1st Respondent to insist on that relief. – Per M. L. Garba, JSC

ALTERNATIVE RELIEF – THE PURPORT OF AN ALTERNATIVE RELIEF

The purport of an alternative relief is that it is a remedy available and sought in place of another; main/primary, in a case which a party claims as satisfactory for an injury or legal grievance suffered. See Ezekwere v. Golden Guinea Brew Ltd. (2000) 1 NWLR (pt. 670) 648, Gold-Mark Nig. Ltd. v. Ibafon Co. Ltd. (2012) 10 NWLR (pt. 1308) 291 (SC), G.K.F. Inv. Nig. Ltd. v. NITEL. Plc. (2009) 15 NWLR (pt. 1164) 344, Univ. of Calabar v. Orji (2012) 3 NWLR (pt. 1288) 418. – Per M. L. Garba, JSC

SPECIFIC PERFORMANCE – WHERE SPECIFIC PERFORMANCE WILL NOT BE GRANTED

It is trite that an order for specific performance is an equitable relief which is grantable at the discretion of the Court, it is not granted as of right. As a general rule, specific performance will not be granted where damages will be adequate compensation for the Plaintiff. Thus, even when it is clear that there was a valid contract between the parties, the Court may nevertheless refuse to grant an order for specific performance in certain instances. A Court will only grant specific performance where it will be just and equitable to do so. SeeEZENWA V. OKO & ORS (2008) LPELR – 1206 (SC), BRIGGS V. C.L.O.R.S.N. & ORS (2005) LPELR – 805 (SC), UNIVERSAL VULCANIZING (NIG) LTD V. DESHA UNITED TRADING & TRANSPORT CO. LTD 8i ORS (1992) LPELR – 3415. – Per Adamu Jauro, JSC

RELIEFS – WHERE A PLAINTIFF SEEKS ALTERNATIVE RELIEFS

Furthermore, the law is that when a Plaintiff seeks alternative reliefs, he is deemed to have accepted that the Court may not grant his main relief and he would thus be satisfied with and ready to accept the grant of either the main relief or the alternative relief. In the case of HELP (NIG.) LTD. V. SILVER ANCHOR (NIG.) LTD. (2006) 5 NWLR (PT. 972) 196 at 222, paras. E – H, this Court per Mukhtar JSC elucidated thus:

“At any rate, the plaintiff/appellant’s claim in the trial Court was in the alternative, as can be seen in the reproduced reliefs sought above. When a party makes a claim in the alternative, the belief is that he wants either of the reliefs sought, in which case when he is granted any of the reliefs it suffices for the purpose of satisfying his claim. The learned trial Judge in the face of the evidence before him, deemed it just to grant the plaintiff/appellant the claim of refund of the sum of N320,000.00 as claimed. I see no reason for complaint in the circumstances, to make the plaintiff insist on the relief of specific performance. If that was all he wanted and nothing else, then it should have sought that only as relief, and not make an alternative claim. In affirming the judgment of the trial Court, I am of the view that the learned justices of the Court of Appeal were absolutely right in refusing the relief of specific performance sought in the notice of appeal.” – Per Adamu Jauro, JSC

CASES CITED

STATUTES REFERRED TO

1. Court of Appeal Act Cap C.36 LFN 2004
2. Supreme Court Act
   

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