Alternative Claim

BEFORE THEIR LGCDSHIPS

KUMAI BAYANG AKA’AHS, J.S.C. (Presided)

JOHN INYANG OKORO, J.S.C.

AMINA ADAMU AUGIE, J.S.C.

EJEMBI EKO, J.S.C. (Read the Leading Judgment)

UWANI MUSA ABBA AJI, J.S.C.

BETWEEN

ALHAJI MOHAMMED KARAYE

(Trading under the name and style of

United Livestock Dealers Enterprises)

AND

1. LEVI WIKE

2. SOLOMON OHABIKO

3. INNOCENT OSI

(Trading under the name and style of

United Livestock Dealers Enterprises)

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EKO, J.S.C. (Delivering the Leading Judgment): The appellant was a founding member of United Livestock Dealers Enterprises, off Mile 3 Market, Diobu, Port Harcourt. In 1973 United Livestock Dealers Enterprises (hereinafter called “the Union”) was given a piece of land at Mile 1, Biobu Market by the Port Harcourt City Council. Between 1975 and 1983 the appellant, as the plaintiff, was the Vice-Chairman of the Union. It is averred in paragraph 5 of the 2nd amended statement of claim that the Executive Committee of the Union, in which the appellant, as the plaintiff, was the Vice-Chairman did not maintain “proper account”. A new Executive Committee was constituted in 1983, and the appellant was appointed/elected “the treasurer of the union -” a post he held until the disagreement within the Union arose.

The respondents, as defendants, had pleaded in paragraph 11 of the further amended statement of defence that the appellant, as the treasurer, “could not account for the sum of N9,353.10 – which was in his possession.” They relied “on the audit report of the firm of Chartered Accountant, namely: Tamunoibi & Co. of Azikiwe Road, Port Harcourt to show that this amount was not accounted for at the time of audit.” The respondents further alleged that “in 1982 (the appellant) paid N200.00 given to him by the Union” to pay at the Land’s Office to secure the Union’s interest over a piece of land and that he, instead, “obtained the receipt in his own name.”In what appears their justification for terminating the appellants’ membership of the union, the respondents averred inter-alia in paragraph 11 of the further amended statement of defence that by “a letter dated 29th October, 1984, after the Union found (the appellant) was unable to account for huge sums of money that came into his possession for which he (was) being charged to court,” they decided to terminate his membership of the Union. In other words, the appellant was expelled from the union during the pendency of the case at the Magistrate’s Court in which he was being prosecuted

Before Their Lordships

Between

AND

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on the value of the house put at N750,000.00 and the plaintiff was to pay in two instalments. The first instalment of N500,000.00 was paid through a Union Bank Cheque on 10/2/95 while the balance of N250,000.00 was also paid through a Bank of the North cheque on 29/9/95. When the first cheque was encashed, the money was shared out and the 3rd and 4th defendants collected their shares but the 2nd defendant did not collect his portion but asked the Ist defendant to keep it. He later wrote the 2nd defendant when he received the cheque for the balance of N250,000.00. It was at that instance that the 2nd defendant told him he was no longer interested in the transaction and asked him to return the money to the plaintiff as he had found a better offer and showed him (1st defendant) a cheque for N800,000.00. He then briefed his (1st defendant’s) solicitors to write to the 2nd plaintiff but the letter was returned unclaimed. The 2nd defendant however claimed that he withdrew the mandate he gave to the 1st defendant when the latter could not sell the house within a reasonable time before selling same to the 6th defendant for N800,000.00 in October 1995.

The learned trial Judge reviewed the evidence (documentary and oral) which was adduced by the parties and found that the plaintiff paid the purchase price which was acknowledged by the 1st, 3rd and 4th defendants and consequently performed his part of the contract but the properly is yet to he released to him by the 2nd defendant and so section 67(2) of the Property and Conveyancing Law Cap 130 Laws of Oyo State 1978 is applicable to the case. He also found that the 1st defendant is the agent of the 2nd defendant in respect of the sale of the property in dispute to the plaintiff and that he obtained the consent of the 2nd defendant before he effected the sale which created a contract between the plaintiff and the 2nd defendant a breach of which is capable of enforcement by the court. Despite these findings the learned trial Judge did not make an order of specific performance to compel the 2nd defendant to execute a formal conveyance transferring the property to the plaintiff because the 2nd defendant had assigned the property to the 6th defendant. He reasoned that since the 2nd defendant is vested with the property as sole administrator and proceeded to transfer to a 3rd party i.e. 6th defendant, the relief being sought for specific performance cannot be granted and proceeded to award N1 million (being the alternative claim) as damages for breach of contract. The plaintiff felt aggrieved and in an undated Notice containing four grounds appealed against the said judgment (see pages 165 – 190 of the Records) from which the following three issues were formulated for determination:

I. Whether the learned trial Judge was right when he said that the 2nd respondent has assigned the property in dispute to a third party that is the 6th respondent when the court had earlier held that the 2nd, 3rd and 4th respondents had already sold the same property to the appellant through tile Agency of the 1st respondent by virtue of the legal principle of NEMO DAT QUOD NON HABET..
2. Whether the learned trial Judge was right not to consider the legal implication of the principle of “Lis Pendens” as a basis to VOID the purported assignment of the property in dispute by the 2nd respondent to the 6th respondent on 12th August, 1997 during the pendency of the suit which commenced on 4th December, 1995 and to which the 2nd respondent filed a Memorandum of Appearance on 8th December, 1995.

3. Whether the refusal of the learned trial Judge in making an order of specific performance for the assignment of the property in dispute by the 2nd, 3rd and 4th respondents in favour of the appellant can be allowed to stand in view of the clear provisions of section 67(1) & (2) Properly and Conveyancing Law Cap. 99 Volume V. Laws of Oyo State 1978 which the Honourable trial court itself had held to be applicable to the suit.

The 1st, 3rd and 4th defendants did not contest the appeal consequently they did not file any briefs of argument. But the 2nd, 5th and 6th respondents responded to the appeal with the 6th respondent amending his brief which was filed on 28/9/2007 pursuant to order of court made on 24/9/2007. The 2nd respondent formulated two issues as follows:

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1. Whether in law there was a valid sale of any house by the 1st defendant the supposed agent of the 2nd defendant/respondent in the first place.

2. Whether the court can order for specific performance of a non-existing and out rightly INEFFECTIVE ILLEGAL and INEFFECTUAL contact (sic) entered into by a party lacking requisite legal capacity to so act.

Apart from the preliminary objection the issues raised by the 5th respondent are:
1. Whether the learned trial Judge was right when she held that the 2nd respondent has assigned the property in dispute to a third party the 6th respondent.

2. Whatever (sic) the principle of Lis Pendells is applicable to this suit when in fact the property had been sold to the 6th respondent before the suit was instituted.

3. Whether the appellant can he heard in Law for an order of specific performance having been awarded damages claimed as alternative relief in his statement of claim. This issue is a repetition of the preliminary objection,
The 6th respondent formulated three issues for determination but they are a repetition of issues 1 in the 2nd respondent’s brief and issues 2 and 3 in the 5th respondent’s brief respectively.

The appellant filed reply brief to the 2nd and 5th respondents’ briefs.

I will take the preliminary objection first and deal with issues 1 & 3 in the appellant’s brief together and lastly the issue of Lis Pendens. Learned counsel for the 5th respondent contended that this court lacks jurisdiction to entertain this appeal and same should be struck out since the appellant is not a person aggrieved to warrant the filing of the appeal against the respondents since the appellant’s case had already succeeded at the lower court by the award of N1,000,000 (One million naira) damage which he claimed in the alternative to the order of specific predominance.

Learned counsel referred to the pleadings and submitted that the appellant is bound by the pleadings and cannot be heard at this stage to complain about it. It was further argued that allowing the appellant at this stage to apply for an order of specific performance amounts to allowing him to change his case on appeal which this court frowns at and it amounts to the appellant blowing hot and cold at the same time which means approbating and reprobating. The following cases were cited In support of the argument: OREDOYIN v, AKOWOLO (1989) 4 NWLR (Pt 114) 172, 172 IMNL v. PEGOFOR INDUSTRIES (2005) ALL FWLR (Pt.270) 2018 at 2028.
It is the argument of learned counsel for 5th respondent that there is no contract between the plaintiff/appellant and the 2nd defendant to warrant an order of specific performance to be made in his favour. Since an order of specific performance is an equitable remedy and requires enough materials to be placed before the court to warrant the granting of the relief, Exhibit ‘E’ which the appellant placed heavy reliance upon is not a power of attorney nor any authority solely and exclusively addressed to the 1st defendant/respondent and did not comply with section 67(1) Property and Conveyancing Law (Cap. 99) Law of Oyo State 2000. He therefore urged this court to resolve the issue against the appellant and dismiss the appeal.

Learned counsel for the appellant argued that once the sale of the property to the appellant was found to be valid, what ought to follow is to grant the order of specific performance in favour of the appellant. He contended that the 2nd respondent misconstrued the meaning and interpretation of Section 17 of the Land Instrument Registration Law of Oyo State. He said the non-registration of the instrument relating to the property in dispute was never raised nor was it an issue at the trial court, and that the 2nd, 3rd and 4th respondents did not donate any POWER OF ATTORNEY to the 1st respondent but rather the relationship was purely that of agency and the 1st respondent was an agent to DISCLOSED PR1NCIPALS who actively participated in the sale of the property to the appellant.

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The plaintiff filed an amended Writ of Summons dated 4/5/98 pursuant to the order of Hon. Justice M.F. Oladeinde dated 28/4/98, which was repeated in paragraphs 24, 25, 26 and 27 of the Further Amended Statement of Claim which was reproduced earlier in the judgment.
In the Notice of Appeal, the appellant complained in grounds 1 and 2 as follows:-

“1. The learned trial Judge erred in law not to have set aside the sale and/or assignment of the landed property at SW7/43 Oke-Bola lbadan registered as Deed of Conveyance Instrument No. 46 at page 46 in volume 493 of the Land Registry Ibadan made by the 2nd defendant/respondent when the said sale and, or assignment has been caught by the principle of NEMO DAT QUOD NON HABET..

PARTICULARS OF ERROR

i. That once the triad Judge has held rightly in her judgment that the defendant/respondent is the lawful agent of the 2nd, 3rd and 4th defendants/respondents of the sale of the property in dispute and that he obtained their consent before selling the property to the plaintiff/appellant the sale is lawful. It is therefore wrong for the trial Judge to hold again that the relief of specific performance cannot be granted.

ii. That once the trial Judge has pronounced the sale of the property in dispute to the plaintiff/appellant by the 2nd, 3rd and 4th defendants/respondents as lawful through the agency of the 1st defendant/respondent had nothing to sell and/or assign to the 6th defendant/respondent again.

iii. That once the trial Judge held that there was a breach of contract by the 2nd defendant/respondent ALONE over the sale of the property in dispute on the 10th day of July, 1995 to the plaintiff/appellant the assignment registered as No. 40 at page 40 in volume 3247 dated 21st August, 1987 (sic) subsequently made by the said 2nd defendant/respondent in favour of the 6th defendant/respondent is not sacrosanct or encumbered as not to be set aside.

2. The learned trial Judge misdirected herself not to have ordered the specific performance of the contract of sale of the landed property in dispute between the plaintiff/appellant and the 2nd, 3rd and 4th defendants/respondents through the agency of the 1st defendant/respondent when she was not restrained or constrained by law before considering and resorting to the alternative claim of the plaintiff/appellant.

PARTICULARS OF ERROR

That section 67(1) and (2) of the Property and Conveyancing Law Cap. 99 Laws of Oyo State 1978 did not constitute a bar nor disempowered the trial Judge to order the specific performance of the contract of the sale of the properly in dispute in favour of the plaintiff/appellant when the Hon. Judge held as follows in her Judgment.

(a) “I am of the view that Exhibits D, D1, J – 13 constitute sufficient evidence of note or memorandum in writing as required by section 67(1) of the PCL.

(b) Plaintiff having paid the purchase price which has been acknowledged by the 1st defendant, 3rd and 4th defendants via Exhibits J – 13 has performed his part of the contract whilst the property paid for is yet to be released to him by the 2nd defendant.

(c) The legal authority cited by the trial Judge in support of the findings was not followed when she declined to give an order of specific performance in favour pr the plaintiff/appellant. The trial Judge wrote as follows in her judgment.

“Where there is part performance of an unwritten contract its specific performance will be enforced as if the terms or the contract have been reduced into writing. Section 67(2) of the PCL of Oyo State stated above recognized this doctrine and makes provision for same. See the case of MBA-EDE v. OKUFO (1990) 7 NWLR (Pt.135) 787 at 797”

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The main relief the appellant sought was for an order of specific performance. But it is the alternative relief of damages that was granted to him. A right of appeal against a decision is a matter of law. It is given or conferred by statute or law. The right of appeal conferred by the constitution is given to an aggrieved person upon whom a determination or decision has been pronounced, and the highpoint of such pronouncement is that it has wrongfully refused an aggrieved person of something or wrongfully affected him of something. See: IN RE IJELU (1992) 9 NWLR (Pt. 266) 414; OGUNBIYI v, ISHOLA (1996) 6 NWLR (Pt. 452) 12; OKENE v. ORIANWO (1998) 9 NWLR (Pt.566) 408; ISULIGHT (NIG) LTD v. JACKSON (2005) 11 NWLR (Pt. 937) 631.

The plaintiff/appellant sought for an order of specific performance.

Despite the fact that the learned trial Judge made the following findings:-

1. That the 1st defendant is the lawful agent of the 2nd, 3rd and 4th defendants in respect of the sale of the property in dispute and obtained their consent before selling the property to the plaintiff;

2. The sale is lawful; and

3, There was a breach of contract by the 2nd defendant-

It is wrong for the learned trial Judge to hold that a relief of specific performance cannot be granted to the plaintiff. The decision given by the learned trial Judge comes within the purview of the plaintiff being wrongfully refused a relief he was entitled to. Notwithstanding the fact that judgment was entered in favour of the plaintiff in the alternative claim for damages he is still an aggrieved party and the right of appeal enshrined in section 241(1)(a) of the 1999 constitution enures to him. I therefore overrule the preliminary objection filed by the 5th respondent as lacking in merit and it is accordingly dismissed.

Issues for determination

Issues 1 & 3: On issues nos. 1 & 3 Professor Adesanya SAN, learned Senior Counsel for the appellant argued that the learned trial Judge having found that the 2nd defendant in failing to hand over the property which was paid for by the plaintiff was in breach of a contract which the court could enforce contradicted himself when he refused to order specific performance because the 2nd defendant who was vested with the property as sale administrator transferred it to a third party, the 6th defendant. He contended that the 2nd, 3rd, and 4th defendants had nothing to sell again to 6th defendant after they had given authority to the 1st defendant to sell the property under the principle of NEMO DAT QUOD NON HABET, In oral amplification, the learned Senior Counsel submitted that based on the findings of fact made by the learned trial Judge against which there has been no appeal, it will be incongruous not to grant specific performance as there was part performance by the plaintiff before the 2nd respondent purportedly sold the same properly to the 6th respondent. He urged this court to discountenance the brief filed by 2nd respondent because it does not relate to the grounds of appeal and there is no cross-appeal filed by the 2nd respondent nor a respondent’s notice to vary the judgment and relied on the following cases:

CHIKE v. FEDERAL HOUSING AUTHORITY (1999) 10 NWLR (Pt.624) 574 and OYEDE V. OLUSESI (2005) 16 NWLR (Pt.951) 341.
In the brief filed by 2nd respondent’s counsel, Olatunde Shonibare, who was absent at the hearing of the appeal but served with hearing notice, reference was made to sections 16 and 17 of the Land Instrument Registration Law Cap 56 Laws of Oyo State as it relates to an agent who has power to sell land and transfer interest in land and it was submitted that the purported letter of authority issued to 1st Defendant to enable him sell a house was a short note addressed to a non juristic person which did not satisfy the requirements of the law as it was not registered and so robbed the 1st defendant of the legal capacity to so act. It was further contended that the 2nd defendant who is the Head of the Family never for once recognized the said transaction and did not ratify the said sale by the 1st defendant to the

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plaintiff/appellant and did not collect a single kobo from the purchase price. It was submitted that any sale purportedly carried out in this circumstance is a nullity since the 1st defendant had not legal capacity to so act and relied on the dictum of Lord Denning M.R. in BENJAMIN LEONARD MACFOY v. U.A.C. LTD. (1962) A.C 152 when he said at page 160
“…if an act is void, then It is in law a nullity. It is not only bad, hut incurably bad. There is no need for an order of the court to set it aside. It is automatically null and void without more ado, though it is sometimes convenient to have the court declare it to be so. And you cannot put something on nothing and expect it to stay there. It will collapse…” Learned counsel then argued that there is no basis for the Court of Appeal to order specific performance and asked [his court to dismiss the appeal since there was no valid and legal contract for the sale of the house between the 1st defendant and the appellant.

Mr. Abimbola, the Senior Legal Officer, Ministry of Justice Oyo State representing the 5th respondent submitted that the 6th respondent is a bona fide purchaser of a legal estate without notice and so the learned trial Judge’s decision in not granting the relief of specific performance was neither a legal somersault nor a misdirection. He further submitted that it is not the practice of the appellate court to reverse the award of damages by the trial court unless such award is shown to be manifestly too high or too low or made on wrong principle and cited the following cases in support: ONAGA v. MICHO (1961) 12 SCNLR 101; ELF (NIG) LTD. v. SILLA (1994) 6 NWLR (Pt. 350) 258 and IMNL v. PEGOFOR INDUSTRIES LTD (2005) ALL FWLR (Pt.270) 2018.

Mr. Babatunde learned counsel for the 6th respondent apart from echoing the argument of learned counsel for 2nd respondent on sections 16 and 17 of the Land Instrument Registration Law referred to the evidence of 1st Defendant under cross-examination where he admitted that he collected the money from the appellant piece-meal but did not notify the 2nd defendant that he had collect any part-payment and argued that the money collected from the appellant was never given to the 2nd defendant who is the head of the family and the 2nd defendant never ratified the transaction. He as the sale and Surviving Administrator and the head of the Ekunseitan family can enter into any transaction on behalf of the family. Such transaction cannot be declared void but voidable.

The submission by learned counsel for 6th respondent to the effect that the 1stdefendant admitted under cross-examination that he did not notify the 2nd respondent that he had collected any part-payment is not borne out by the records. Both in his evidence-in-chief and under cross-examination he maintained that when the first instalment of N500,000.00 was paid he shared it out to the 2nd, 3rd, and 4th defendants and while the 3rd and 4th defendants went away with their shares, the 2nd defendant said he should keep his share for him until full payment and when he collected the 2nd installment of N250,000.00 he then wrote to the 2nd defendant and followed it up with a visit. It was during the visit that the 2nd defendant told him to return the money to the plaintiff. The cross-examination of the 1st defendant by Mr. G.T. Awopeju, learned counsel for the 2nd defendant is contained on pages 39-40. At page 39 lines 38-39 and page 40 lines 1 – 5 he said:-
“I collected the 1st cheque on 10/7/95 in my name. I got the 2nd cheque on 29/9/95. When the 1st cheque was cleared, I called a meeting of all the family. They all shared the money in my office except the 2nd defendant who refused to take his own share until the last payment is made. The 2nd defendant did not receive any money from me”.

So the 2nd defendant was informed by the 1st defendant when the instalmental payments were made. If he did not want the sale of the property to the plaintiff to go ahead, he was duty bound to inform 1st, 3rd and 4th defendants about it and to obtain the concurrence of the 3rd and 4th defendants to the new deal with the 6th defendant. If the property were exclusively owned by him, notwithstanding the fact that 1st defendant was given the mandate to sell the property, he would be at liberty to look for a buyer and sell same to him.

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Where a sale takes place under a power of attorney and the donor of the power also sells de hors the power, the sale is valid and the only issue that will arise is one of priority in the compelling sales. See: AMADJ v, NSIRIM (2004) 17 NWLR (Pt 901) 111; AJUWON V. ADEOTI (1990) 2 NWLR (Pt 132) 271; OSHOLA v, FINNIH (1991) 3 NWLR (Pt. 178) 192. But where the sale of family properly is involved without the consent of some of the principal members of the family, the transaction is voidable – See: MANKO v. BANSO 2 WACA 62; ESAN v. FARO 12 WACA 135; EKPENDU v. ERIKA (1959) SCLR 186. Where the transaction is carried out by principal members of the family without the consent of the head of the family such a transaction is null and void. See: KUMA v. KUMA 5 WACA 1; AGBLOE V. SAPPOR 12 WACA 182. Learned counsel for the 6th respondent has argued that the 2nd respondent was at liberty to sell the disputed property to the 6th respondent without letting the 3rd and 4th defendants know since he was the sole and Surviving Administrator and the head of the Ekunseitan family and so can enter into any transaction on behalf of the family, While it may be ought to state that as head of the family, the 2nd defendant can enter into any transaction on behalf of the family, the other members have to ratify the transaction before it can stand, otherwise the transaction is voidable – ESAN v. FARO and EKPENDU V. ERIKA supra.

The 2nd and 6th respondents harped so much about the invalidity of the transaction on the ground that the said letter of authority to sell was addressed to the whole world and not to 1st defendant in particular and what is more, it did not satisfy the requirements of the law as provided for under sections 16 and 17 of the Land Instrument Registration Law. Section 16 and 17 of the Land Instruments Registration Law Cap 56 Laws of Oyo State 1978 provide as follows:-

“16. No instrument shall be pleaded or given in evidence in any court as affecting any land unless the same shall have been registered in the proper office as specified in section 3:

Provided that a memorandum given in respect of an equitable mortgage affecting land in the state executed before the 1st day of July, 1944, and not registered under this Law may be pleaded and shall not be inadmissible in evidence by reason only of not being so registered.
17. Every power of attorney affecting land shall, so far as it affects any land, be void unless the same is registered within sixty days from its date if it is executed in Nigeria or within ninety days from its date if it is executed outside Nigeria.

Provided that the registrar may extend such periods wherever he shall be satisfied that registration has been delayed without default or neglect on the part of the donee of the power of attorney”.

1 am in complete agreement with the submissions made by learned Senior Counsel in the reply filed to the 2nd respondent’s brief. The issue of non-registration of the instrument for the sale of the property was never raised; neither was it an issue at the trial. It is trite and settled law that any Issue not raised at the court of first instance cannot be raised on appeal without the leave of the court sought and obtained. See: KATE ENTERPRISES LIMITED v. DAEWOO NIGERIA LIMITED (1985) 2 NWLR (Pt.5) 11b at 118; MOGAJI v. CADBURV NIGERIA LIMITED (1985) 2 NWLR (Pt.7) 393 at 395.

In Exhibit E 1 the 2nd respondent authorized Deboh Stephenson Enterprises, an estate/property consultant to sell the property located at SW7/4B Oke-Bola Ibadan. This was in 1993. Later on 21/2/95, all the beneficiaries of the properties at SW7/48 Oke-Bola Ibadan signed Exhibit “E” agreeing to the sale of the said properties at any reasonable offer. Exhibit “E1” is clearly not a power of attorney affecting land requiring registration as being stipulated in section 17 of the Land Instruments Registration Law. Exhibit “E1” created an agency between the 2nd respondent and the 1st defendant which entitled the 1st defendant to 5%, of the purchase price if the 1st defendant sold the properties. Exhibit “E1” therefore does not require being registered before it can be pleaded and produced in evidence.

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The learned trial Judge correctly found that Exhibits E1 and E read together created a valid agency contract between the 1st defendant on the one hand and the 2nd 3rd and 4th defendants collectively as principal to sell the property in dispute. Another important finding which was based on credibility of witnesses was that the 2nd defendant knew about the sale of the property to the plaintiff and he consented to the sale and when the 1st defendant took the share of the first payment to him he asked the 1st defendant to keep the money until the last payment is made. With these findings of fact there is no way it can be said that the 2nd respondent sold the property to the 6th respondent de hors the power of the agent. This is because the agent sold the property on 10/7/95 when the first payment of N500,000.00 was made which was completed on 29/9/95 when the cheque for the remaining N250,000.00 was made whereas the cheque for the N800.000.00 which the 2nd respondent sold the property to the 6th respondent was on 3/10/95. By that date the property had been sold to the appellant and title had passed. The 2nd respondent had no title left to pass to the 6th respondent and so the principle of NEMO DAT QUOD NON HABET applied to the latter transaction. Exhibit “E” coming after Exhibit “E1” debunks the argument being advanced by learned counsel for 6th respondent that the 2nd respondent being the sole and Surviving Administrator and head of the Ekunscitan family can enter into any transaction on behalf of the family. Such a transaction must have the blessing or the other members of the family since the said Exhibit “E” was not made for the fun of it but to meet the legal requirement of the concurrence or consent of the principal members of the family to the transaction.

Learned counsel for 2nd and 6th respondents argued in their briefs that Exhibits E and E1 never qualified as letters of authority as they failed to meet the requirements of section 67(1) of the Property and Conveyancing Law. 2nd respondent went on to submit that once the said Exhibit E1 was not registered, it cannot form the basis for an action in specific performance.

The law requires that contracts for sale of land should be in writing, Section 67(1) & (2) of the Property and Conveyancing Law provides:-
“67(1). No action can be brought upon any contract for the sale or disposition of land or any interest in land, unless the agreement upon which such action is brought, or some memorandum or note thereof is in writing, and signed by the party to be charged or some other person thereunto by him lawfully authorized,

(2) This section applied to contracts whether made before or after the commencement of this Law and does not affect the law relating to part performance, or sales by the court”.

The learned trial Judge considered Exhibits D, D1, D2, J2 and J3 and the oral evidence led when he stated at page 156 of the record:
“Exhibit D and D1 are stumps of cheques issued by the plaintiff to the 1st defendant on 10/7/95 and 29/9/95 for the sum of N500,000.00 and N250,000.00 respectively. The plaintiff gave evidence that the amount paid via Exhibits D and D1 is for the purchase of the properly in dispute. The 1st defendant admitted receiving the purchase price via Exhibits D and D1 on behalf of the 2nd, 3rd and 4th defendants. Exhibits J – J3 is (sic) the receipts signed by the 3rd and 4th defendants as having received their shares of the purchase price of the property in dispute”

At page 159, the learned trial Judge considered section 67(1) of the Property and Conveyancing Law vis-a-vis the evidence adduced and held correctly in my view that-

“Having considered the provisions of section 67(1) of the PCL Oyo State vis-a-avis Exhibits D, D1, J – J3, I am of the view that exhibits D, D1, J-13 constitute sufficient evidence of note or memorandum in writing as required by section 67(1) of the PCL. Assuming that my finding there is wrong the plaintiff having paid the purchase price which has been acknowledged by the 1st defendant, 3rd and 4th defendants via Exhibits J – J3 has performed his part of the contract whilst the property paid for by him is yet to be released to him by the 2nd defendant. This makes the provision of section 67(2) of the PCL applicable to him”.

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The holding by the learned trial Judge is buttressed by the decision in MBA-EDE v. OKUFO (1990) 2 NWLR (Pt. 135) 787. In that case the appellant on the pleadings claimed that he erected an eight-bedroom bungalow on one of the plots leased to by him; that sometime in 1985, he approached the respondent to ask him if he was interested in buying the building on the land. The respondent indicated his interest and thereafter the purchase price for the building was agreed at N40,000.00. Immediately after the negotiation, he (appellant) fell ill, and traveled to his village in Anambra State, having removed the tenants from the building and locked up the enure place. On his return in June 1985, he discovered that the respondent had put new tenants in the house after damaging the doors, replacing the keys and converting an open space in the building into bedrooms. The respondent promised to pay the appellant the agreed N40,000.00 in six months which he failed to do. The respondent on the other hand denied the appellant’s averments claiming that he had paid the sum of N19,000.00 as part payment of the N40,000.00 agreed on as purchase price of the property. The respondent counter-claimed for specific performance of the sale agreement or in the alternative the sum of N73,000.00. The trial Judge dismissed the appellant’s claims and granted in favour of the respondent a decree of specific performance on condition that the respondent pays the balance of the purchase price within 30 days from the date of judgment. The appellant appealed against the judgment. The Court of Appeal considered the provision of section 5 of the Law Reform (Contracts) Law Cap. 66 Laws of Lagos State requiring that such contracts be reduced into writing held dismissing the appeal that although the contract between the appellant and the respondent in this case was never reduced into writing as required by section 5 of the Law Reform (Contracts) Law Cap- 66 Laws of Lagos State, the law will not allow the provisions of the said law to be used as an instrument of fraud. Consequently, where as in this case, there is part performance of an unwritten contract, its specific performance will be enforced as if the terms of the contract have been reduced into writing. On the facts, the present case on appeal is stronger than the MRA-EDE v. OKUFO supra in that the learned trial Judge found that the 2nd respondent consented to the 1st defendant selling the property, after the property had been sold, three-quarters of the agreed price was paid which was to the knowledge of the 2nd respondent since the money was shared out with 3rd and 4th defendants collecting their share and 2nd respondent asking the 1st defendant to keep his (2nd respondent’s) share until the last instalment is paid. Even then the cheque for the last instalment was given five days before the 6th respondent made out his cheque for N800,000.00. This case therefore deserves a more sympathetic consideration than the Okufo’s case supra.
The remaining issue left for consideration is whether the case is caught by doctrine of Lis Pendens. The judgment shows that the Writ of Summons was issued on 4th December, 1995 against the 1st and 2nd defendants. On the application of the 1st defendant the 3rd and 4th defendants were joined as parties on 10th December, 1996. The 5th and 6th defendants were also joined as parties to the suit by an order of court on 28th April, 1998. The plaintiff registered his caution (Exhibit A) on 15th December, 1995 after the suit had been filed while the Assignment (Exhibit C) was presented for registration on 18/8/97 and duly registered on 21/8/97. The issue was addressed in the briefs filed by 5th and 6th respondents but 2nd respondent decided on not saying anything on the issue. Learned counsel for 5th respondent argued that there was no court order or injunction restraining the 5th land 6th defendants from perfecting or registering the title document at the Land Registry and the purported caution is only applicable to the grant of a statutory right of occupancy and not the deed of Assignment. The 6th respondent argued that the transaction between the 2nd respondent and the 6th respondent was signed, sealed and delivered on the 3rd of October, 1995 even before the commencement of the suit instituted by the Appellant in the Lower Court on 4/12/95.
The 5th respondent’s argument cannot be taken seriously. Caution is define in Black’s Law Dictionary 6th Edition as:-

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“to warn, exhort, to take heed, or give notice of danger”
The registration of the caution was an encumbrance to forestall the alienation of the title in the property registered as No.46 at page 46 in volume 493 at the Lands Registry in Ibadan. It did not matter whether the alienation was to vest title by way of an assignment or the issuance of a grant of statutory or customary right of occupancy. The caution had to be removed before further action could be taken on the application. The caution can be discharged either by the objector who registered the caution or the suit is concluded. It does not matter that the sale was concluded before the action was instituted. It is not the transaction itself that is caught by lis pendens but the registration of the assignment when the suit was pending. The 2nd respondent did not sell anything to the 6th respondent because he had earlier given his consent for the property to be sold to the 1st defendant and it was sold before he changed his mind and purportedly sold same to the 6th respondent. The 6th respondent bought nothing since the 2nd respondent had nothing to sell and so the said sale was caught by the doctrine of NEMO DAT QUOD NON HABET. The learned trial Judge defaulted in his conclusion that he could not make an order of specific performance because the 2nd respondent had sold the property to 6th respondent and the assignment had been registered. Where a party to an action has proved his substantive claim there would be no justification for a trial court to embark on the consideration of his alternative claim. See: TRAFON COMPANY LIMITED V. NIGERIAN PORTS PLC (2000) 8 NWLR (Pt 667) 86. In the instant case even the learned trial Judge showed that the appellant was entitled to an order of specific performance. The appeal succeeds and it is hereby allowed. The order made by the learned trial Judge awarding the appellant damages of N1,000,000.00 for breach of contract is hereby set aside. In its place I decree an order of specific performance against the 2nd respondent and his sisters for the assignment of the landed property at Oke-Bola, Ibadan, Oyo State covered by indenture registered as No. 46/46/493 Lands Registry Ibadan to the Appellant. I further make the following declarations namely:-

1. A declaration against the 2nd defendant that the deed of assignment dated 12th day of August, 1997 and registered as instrument No. 40 at page 40 in volume 3247 executed by him in favour of the 6th defendant during the pendency of this suit is null and void and of no effect whatsoever. The said assignment shall be vacated in the register of deeds of the Department of Lands and Physical Planning of the Ministry of Lands, Housing and Physical Planning Ibadan, Oyo State.

2. A declaration against the 5th defendant that the deed of Assignment dated 12th August, 1997 and registered as instrument No. 40 at page 40 in volume 3247 of the register of deeds by the Department of Lands and Physical Planning Ibadan in favour of the 6th defendant is irregular, null, void and of no effect same having been registered Carelessly and Negligently. The said Assignment shall be vacated in the register of deeds of the said Ministry of Lands, Housing and physical Planning at Ibadan. The appellant is entitled to costs of this action which I assess at N30,000.l00 in this court and N10,000.00 in the lower court against the 2nd and 6th respondents.

MUSA DAITIJO MUHAMMAD, J.C.A: I have read in advance the lead judgment of my learned brother Akaahs, JCA. I agree entirely with his lordship’s thorough reasonings leading to the conclusion that this appeal has merit.

This courts decision in IBAFOR COMPANY LTD, Vs. NIGERIA PORTS PLC (2000) 8 NWLR (Pt. 667) 86 provides the authority for the principle that a Plaintiff who has established his substantive claim obviates the need on the part of the trial court to consider and grant the Plaintiffs alternative claim. Alternative claims are only considered and granted where the grant of the substantive claim is either not feasible, unjust or inequitable. None is the case in the matter at hand. The lower court’s grant of an alternative claim where the Appellant has established his substantive claim is in the circumstance therefore perverse.

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For the foregoing and the fuller reasons stated in the lead judgment I also allow the appeal and make the same consequential orders as contained in the lead judgment.

CHIDI NWAOMA UWA, J.C.A: I read in advance the judgment just delivered by my learned brother, K.B. Akaahs, JCA and I agree with his decision allowing the appeal.
The 2nd Respondent purportedly sold the property to the 6th Respondent on 3/10/95 by which date the property had been sold to the Appellant on 10/7/95 when the first payment was made, which sale the 2nd Respondent consented to.
As at 3/10/95 the 2nd Respondent had nothing to sell to the 6th Respondent. Therefore the learned trial judge was wrong not to have made an order for specific performance with the reason that the property had been sold to the 6th Respondent who had registered same.
The 2nd Respondent could not sell to the 6th Respondent what he did not have. The purported sale by the 2nd Respondent to the 6th Respondent and the Deed of Assignment executed by the 2nd Respondent pursuant to the purported sale were void ab initio. See Akerele v. Atunrase (1969) 1 All NLR 201 and Ajuwon v. Akanni (1993) 9 NWLR (Pt 316) 182.

For the fuller reasons given in the leading judgment I also allow the appeal and abide by the consequential orders therein including the orders as to costs.

Representations

AND