Whether Consideration Needs To Be Adequate (III)

14. On Nature of interest in land conferred by receipt of  purchase price and delivery of possession –

The receipt of purchase price coupled with the delivery of possession confers an equitable interest in landed property. In the instant case, the receipt of the purcase price by the 1st respondent coupled with the delivery of possession by him to the 2nd respondent conferred on the 2nd respondent an equitable interest in the Ikoyi, Lagos property.

[Nsiege v. Mgbemena (2007) 10 NWLR (Pt. 1042) 364; Thompson v. Arowolo (2003) 7 NWLR (Pt. 818) 163 referred to.] (P. 44, paras. C-D)

15. On Whether equitable interest in land can be passed –

A person with an equitable interest in land which is capable of being turned into a legal estate by specific performance can pass the equitable title to another who would acquire the legal estate after the specific performance. In the instant case, the 2nd respondent had acquired an equitable interest in the Ikoyi, Lagos property and it would be inequitable to deprive him of it. (Pp. 45, paras. C-D;46,para. B)

16. On Application of principle of nemo dat quod non habet-

Where a seller is shown as not having title in him at the time of sale, the contract of sale must be vitiated on application of the principle of nemo dat quod non habet. Such contract is void ab initio. In the instant case, the principle was not applicable to the facts of the case. If the 2nd respondent had indicated in exhibit “MM2” that he had legal estate to pass on to the 1st respondent at the time of sale which turned out to be false, the contract in respect of the Sharada, Kano property would have been vitiated. [Mohammed v. Klargester (Nig.) Ltd. (2002)

14 NWLR (Pt. 787) 335 referred to.] (Pp. 44-45, paras. H-B)

17. On Basis of principle of bona fide purchaser for value without notice –

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. If a purchaser fails to investigate title at all, he is fixed with constructive notice of everything that he would have discovered had he investigated the whole title.

In the instant case, the appellant never consulted with the 1st respondent before the purchase but merely acted on the presumption that all was well and on the representation made to him by the 2nd respondent. [Omosanya v. Anifowoshe (1959) SCNLR 217; Odunukwe v.Admin. Gen., E.C.s. (1978) 1 SC 25 referred to.] (P. 48, paras. B-D)

18. On Types of notice –

(a)       actual notice, which is when a person has actual notice of all facts of which he has actual knowledge however that knowledge . was acquired;

(b)        constructive notice by which the court of chancery insisted that a purchaser should inquire about equitable interest with no less diligence than about legal interest which he could ignore at his own peril; and

(c)        imputed notice, which is the actual or constructive notice imputed to a purchaser where the notice was received by an agent employed by the purchaser.

In the instant case, what the evidence suggested was a lack of notice or knowledge of the controversy rather than of the legal interest of the 1st respondent.

[Animashaun v. Olojo (1990) 6 NWLR (Pt. 154) 111 referred to.] (P. 48, paras. D-H)

19. On Principles governing protection of property and protection of commercial transactions –

The law recognizes the protection of property, that is, no one can give a better title than he himself possesses. The law also recognises the protection of commercial transactions, that is, the person who takes in good faith and for value without notice should get good title. (P. 49, paras. A-B)

20. On When court will imply performance of contract within reasonable time –

In a contractual relation where time is of essence in respect of performance of a contract, the law will imply performance within a reasonable time, although the contract between parties is silent in respect of time for performance. Thus, where no term concerning time for performance was agreed upon by parties, it is the duty of the court to read into the contract a term that performance was agreed to be given within a reasonable time.

The reasonable time would depend on the circumstances of each case. In the instant case, because of the circumstances of the 2nd respondent and the fact that specific performance was dependent on other people extraneous to the agreement, the court could not hold that an unreasonable time was taken in ensuring transfer of the Sharada, Kano property.

[N.B.C.I. v.Integrated Gas (Nig.) Ltd. (2005) 4 NWLR (Pt. 916) 617; Edem v. Canon Balls Ltd. (2005) 12 NWLR (Pt. 938) 27 referred to.] (Pp. 45-46, paras.

E-F; 46, para. A)

21. On Whether claim in respect of agreement can be made against party with whom there is no privity of contract –

A claim in respect of an agreement cannot be made against a party with whom there is no privity of contract. In the instant case, the appellant could not succeed in his counter-claim against the 1st respondent in respect of the Ikoyi, Lagos property as there was no privity of contract between them.

(Pp. 47-48, paras. H-A)

Per OGUNWUMUU, J.e.A. at pages 47-48, paras.

H-B:

“As I held earlier in this judgment, the two agreements in respect of the two properties are distinct. I have also held that the equity of this case is in favour of the 2nd respondcent.

The 2nd respondent can succeed in a counter- claim against the 1st respondent. However, I do not think the appellant can succeed in a counter-claim against the 1st respondent. In the first instance, there is no privity of contract between them. The appellant derived equitable interest from whatever interest 2nd respondent possessed. I agree with learned pt respondent’s counsel that indeed the 1st respondent is not privy to the alleged contract between the 1st and 2nd defendant hence, the appellant cannot claim against the 1st respondent.”

22. On Whether fact admitted need be proved – By virtue of section 75 of the Evidence Act, no fact need be proved in any civil proceedings which the parties thereto or their agents agree to admit at the hearing or which, before the hearing, they agree to admit by any writing under their hands, or which by any rule of pleading in force at the time, they are deemed to have admitted by their pleadings. (P. 34, paras. B-C)

23. On Duty on court to limit itself to issues raised by parties –

The court cannot go outside the case made by the parties without affording the parties an opportunity to be heard. Thus, issues for determination must be limited to those raised by the parties in their pleadings. The court is without power to raise and consider novel issues without hearing the parties.

In the instant case, the reasons given by the trial court were never canvassed by any of the parties.

None of the parties pleaded or addressed the court on the validity of exhibit “MM2”. Also, the court did not direct the attention of counsel to the missing schedules 1 and 2 of exhibit “MM2” and allow the parties to seek the opportunity to remedy the defect or address the court on the effect. [Bornu Holding

Co. Ltd. v. Bogoco (1971) 1 All NLR 324; Nkuma v. Odili (2006) 6 NWLR (Pt. 977) 587; Ishola v. UBN.

(2005) 6 NWLR (Pt. 922) 422 referred to.] (P.34, paras. C-E)

24.       On Power of Court of Appeal under section 15 ‘of Court of Apppeal Act – Under section 15 of the Court of Appeal Act, 2004, the Court of Appeal has the general power to evaluate documentary evidence and arrive at the

conclusion which the trial court could have reached by virtue of the evidence led. (P. 34, para. F)