CORAM

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Mohammed Lawal Garba – Justice of the Supreme Court of Nigeria

Adamu Jauro – Justice of the Supreme Court of Nigeria

Moore Aseimo Abraham Adumein – Justice of the Supreme Court of Nigeria

Obande Festus Ogbuinya – Justice of the Supreme Court of Nigeria

Abubakar Sadiq Umar – Justice of the Supreme Court of Nigeria

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PARTIES

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MR. SOLOMON OMONIGHO

APPELLANTS 

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 1.MR. FRIDAY O. IJOMONE

 2.MR. STEPHEN ASOGU NDUKA

RESPONDENTS 

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AREA(S) OF LAW

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CONTRACT LAW, PROPERTY LAW, SALE OF LAND, LOAN TRANSACTIONS, EVIDENCE LAW, APPEAL, PRELIMINARY OBJECTION, PRACTICE AND PROCEDURE, DAMAGES, MORTGAGE LAW, CONVEYANCING, NOTICE AND ENCUMBRANCE

 

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SUMMARY OF FACTS

The Appellant was the owner of a story building located at No. 1 Ogudu Lane, Off Agomate Street, Ovwian in Udu Local Government Area of Delta State. In April 2014, the Appellant and his deceased partner, Rufus Onaemoh, won a sub-contract from a contractor to the Delta State Oil Producing Areas Development Commission (DESOPADEC) for construction of Ofagbe Town Hall in Isoko North Local Government Area of Delta State. Having no funds to execute the contract, the Appellant alleged they took loans from the 1st Respondent (a money lender) in the sum of N4M each at 20% interest rate for 4 months duration.

The Appellant secured the loan with his property as collateral, handed over the title documents to the 1st Respondent, and executed a deed of transfer and affidavit of sale of the property in the 1st Respondent’s favour. He paid N1M to the 1st Respondent as part payment towards loan repayment. The Appellant alleged that despite the part payment, the 1st Respondent sold the property to the 2nd Respondent despite appeals to allow him liquidate the loan.

The Appellant sued seeking declarations that the property was his bona fide property, that the purported sale to the 2nd Respondent was null and void, restraining orders, and N25M composite damages for trespass. The Respondents filed defences and counter-claims. The 1st Respondent counter-claimed for declarations that the Appellant had relinquished title through the deed of transfer, that the sale to 2nd Respondent was valid, perpetual injunction, and damages. The 2nd Respondent similarly counter-claimed for declarations of ownership, injunctions, and N20M damages.

The trial court granted the Appellant’s claim on 21st February, 2019. The Respondents appealed to the Court of Appeal, which set aside the trial court’s decision on 8th September, 2021 and granted the Respondents’ counter-claims. The Appellant appealed to the Supreme Court.

 

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HELD

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1. The appeal was dismissed.

2. The Court held that the Appellant’s preliminary objection was incompetent because it attacked only 15 out of 16 grounds of appeal, leaving ground 16 (an omnibus ground) intact, which alone could sustain the appeal.

3. The Court found that the trial court’s finding on loan transaction was ratio decidendi, not obiter dictum, as it was necessary for determining the main issues in the case.

4. The Court held that based on exhibits H, H1 and K (deed of conveyance, affidavit of sale, and transfer documents), the transaction was an outright sale, not a loan, and the Appellant had no remaining interest in the property to give notice of encumbrance.

5. The Court affirmed the award of special damages (N3M solicitor’s fees) as it was specifically pleaded and proved by exhibit K3, and general damages (N10M total) as properly exercised judicial discretion.

6. The Court of Appeal’s decision setting aside the trial court’s judgment was affirmed.

 

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ISSUES

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1. Whether the Court of Appeal was right to dismiss the Appellant’s preliminary objection to the competence of the notice of appeal filed by the Respondents?

2. Whether the reasons given by the trial Court and relied upon by the Court of Appeal were not obiter dictum and was the Court right in relying on principles of mortgage in deciding the appeal without considering the equity of the case?

3. Whether the evidence of possession of the property by the Appellant through his tenants was not sufficient notice of encumbrance to the 2nd Respondent?

4. Whether in the absence of proof of special damages or breach of contract, the lower Court was not in error when it awarded special and general damages to the Respondents?

 

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RATIONES DECIDENDI

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PRELIMINARY OBJECTION – DEFINITION AND CONSEQUENCES

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“A preliminary objection is a specie of objection which, if sustained by a Court, will render further proceedings in a matter unnecessary. It is this dismal consequence on an action, where a preliminary is fruitful, that compels the Court to accord it a premier attention whenever it is invoked in any proceeding.” – Per Obande Festus Ogbuinya, JSC

 

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PRELIMINARY OBJECTION VERSUS MOTION ON NOTICE – PROPER PROCEDURE

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“It is now a settled law, beyond any peradventure of doubt, that a motion on notice is filed where a party intends to challenge the incompetence of one or two grounds of a notice of appeal in the presence of an existing valid ground(s) in a notice of appeal. Where a party, in such a circumstance, files a preliminary objection, such a preliminary objection is rendered incompetent in that it will not determine the fate of the appeal in its entirety.” – Per Obande Festus Ogbuinya, JSC

 

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OMNIBUS GROUND OF APPEAL – VALIDITY AND SUFFICIENCY

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“A solitary ground of appeal is sufficient to oxygenate an appeal and even impregnate it with success in deserving circumstances. Ditto for an omnibus ground of appeal which is typified by ground sixteen supra. An omnibus ground is usually a grouse employed by a complaining party against a trial Court’s appraisal, assessment and apportionment of evidence, be it parol or documentary, and a nudge on the Court to reevaluate same.” – Per Obande Festus Ogbuinya, JSC

 

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WEIGHT OF EVIDENCE – OMNIBUS GROUND MEANING

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“A castigation of a decision on the premise that a judgment is against the weight of evidence, invariably couched as an omnibus ground, connotes that the decision of the trial Court cannot be supported by the weight of evidence advanced by the successful party which the Court either wrongly accepted or that the inference it drew or conclusion it reached, based on the accepted evidence, is unjustifiable in law.” – Per Obande Festus Ogbuinya, JSC

 

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RATIO DECIDENDI VERSUS OBITER DICTUM – DEFINITION AND APPEALABILITY

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“In the realm of etymology, ratio decidendi signifies the legal principle which is important in the determination of the issues raised in a case, id est, the binding portion of the decision, the reason behind a decision, the rule upon which a Court’s decision is founded. Contrariwise, an obiter dictum is a passing remark made by a Judex in a decision which is not necessary for it. While, the former is appealable, the latter is not submissive to an appeal.” – Per Obande Festus Ogbuinya, JSC

 

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GROUNDS OF APPEAL – MUST ATTACK RATIO DECIDENDI

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“It is a trite law that a ground of appeal, which is the nucleus of every appeal, must attack and disclose nexus with a decision that is the subject of appeal. In the sight of the law, a ground of appeal must be linked to and question a ratio decidendi, not an obiter dictum, of a judgment. A ground of appeal must owe its ancestry to a ratio decidendi.” – Per Obande Festus Ogbuinya, JSC

 

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PARTIES BOUND BY CONTRACT TERMS – PACTA SUNT SERVANDA

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“As rightly observed by the lower Court, parties are bound by the terms of their contract. That is an inelastic principle of contract law. In legal parlance, the duty of a Court is to enforce the agreed terms of contract of parties. It is ultra vires its power to alter the terms of contract of parties as that will make mincemeat of sanctity and freedom of contract.” – Per Obande Festus Ogbuinya, JSC

 

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CONVEYANCE – DEFINITION AND LEGAL EFFECT

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“The word ‘convey’, as employed in the deed of conveyance, means ‘To transfer or deliver (something, such as a right or property) to another, especially by deed or other writing, especially, to perform an act that is intended to create one or more property interests, regardless of whether the act is actually effective to create those interests’. Thus, by dint of exhibit H, the appellant granted a carte blanche transfer of his interest over the disputed property to the first respondent without any tinge of reservation or reversionary interest therein.” – Per Obande Festus Ogbuinya, JSC

 

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SALE VERSUS LOAN TRANSACTION – DISTINCTION

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“The transaction inter se over the property was a quintessence of an outright/absolute sale, not a loan contract. A sale is a transfer of a property or title for a price. Its elements are, imprimis: competent parties, mutual consent, a thing capable of being transferred and price in money consideration. An absolute sale is one in which possession and title to the property pass to a buyer immediately upon completion of the bargain. Contrariwise, a loan signifies a sum of money lent to a borrower with interest.” – Per Obande Festus Ogbuinya, JSC

 

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BONA FIDE PURCHASER FOR VALUE – PROTECTION FROM PRIOR INTERESTS

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“In the landscape of land law, the second respondent became a bona fide purchaser for value – one who bought in good faith, honestly, without collision of being particeps fraudis and upon a furnished consideration to the vendor. It flows that the defences of possession and notice, which the appellant waved menacingly against the second respondent’s acquisition of the property, are weak-kneed defences which fly in the face of law and evidence.” – Per Obande Festus Ogbuinya, JSC

 

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SPECIAL DAMAGES – REQUIREMENTS FOR PROOF

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“Special or particular damages are those damages which are the actual, but not necessarily, result of the injury complained of, but follow it as a natural and proximate consequence in a particular case, that is, by reason of special circumstances or conditions of a particular wrong. By their nature, special damages do not enure to the benefit a party as a matter of course. They are not self-executory nor granted in an axiomatic manner. Special damages must be specially pleaded with particulars and strictly proved.” – Per Obande Festus Ogbuinya, JSC

 

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GENERAL DAMAGES – COURT’S DISCRETION AND EXERCISE

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“General damages are those damages that the law presumes as flowing from the wrong complained of by the victim. They need not be specifically pleaded and strictly proved. It is at the discretion of the Court to award general damages. An exercise of discretion does not grant the Court the unrestrained liberty to act arbitrarily or capriciously. Contrariwise, it gives it the latitude to act judicially and judiciously.” – Per Obande Festus Ogbuinya, JSC

 

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DOUBLE COMPENSATION – RULE AND APPLICATION

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compensated under one head of damages for an injury or loss suffered”Double compensation occurs where a party who has been  is awarded damages another head in respect for the same injury. While such a party may be entitled to damages against the party whose act led to the injury, he is not entitled to be compensated under two distinct heads of damages. In essence, the law guards against and frowns upon double compensation.” – Per Adamu Jauro, JSC

 

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CASES CITED

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STATUTES REFERRED TO

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• Evidence Act 2011EVIDENCE ACT, 2011

• Court of Appeal Rules 2016

• High Court (Civil Procedure) Rules

 

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OTHER CITATIONS

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