Supreme Court wades into Osun property dispute

The issue is whether the court should order on specific performance in relation to transaction over an Osun State property, and the apex’s court has returned the file to the Court of Appeal for re-hearing

FOR not making any pronouncement on a request for specific performance of an alleged sale of property located in Osun State, the Supreme Court of Nigeria has ordered the re-hearing of dispute involving one Mr. Bola Ominiyi and Mr. Jacob Adegboyega Alabi.

The apex’s court verdict was for the Court of Appeal, Ibadan, to constitute another panel to sit over the case afresh.

The dispute leading to the appeal began in 1993. That year, according to Bola Ominiyi (the appellant), he bought a parcel of land with a completed building of four flats, which was the disputed property at a price of N350,000.

A sale agreement was executed on October 9, 1993, followed by a ratification document confirming the sale. Thereafter, signed letters of introduction and notices to quit were written to the tenants of the building whom the new owner was introduced to.

Problems, however, arose when the respondent failed to obtain a Governor’s consent to effectively transfer title of the property to the appellant.

This resulted in the institution of an action at the High Court of Osun State on April 3,1995 in order to secure a specific performance of the sale.

In the action, the respondent denied knowing the appellant before the transaction, or selling the disputed property to him.

According to him, when he was in need of a loan, he approached one Mr. Adebagbo and in order to secure the loan, he stated that he deposited the title document to the disputed property with Adebagbo, and reluctantly executed the sale agreement and ratification document.

He also stated that upon a misrepresentation by the appellant’s agents (Adebagbo and one Alhaja Abeke Babatunde) that the said documents would be destroyed if he repaid within three months, he executed the sale agreement, letters of introduction, and notices to quit.

At the trial Court, it was held that the parties’ transaction was an agreement for a loan and not for sale of land. The court also refused to order specific performance of sale agreement because it was security for the loan, and not intended to transfer ownership.

The appellant’s claims were then dismissed. But rejecting the verdict, the appellant went to the Court of Appeal, Ibadan, asking for specific performance.

In the appeal, the court disagreed with the decision of the High Court that the sale agreement and ratification document were executed as a result of misrepresentation.

The court, however, refused to order specific performance on the different ground that the claim was statute barred under the Statute of Limitation Law of Oyo State. This was because, during trial, it was found that the sale agreement prepared in 1993 was backdated in the ratification document to 1977. This was to deceive the Governor into giving his consent to the transaction, under the belief that the transaction took place before the Land Use Act of 1978 was promulgated.

The reason for refusing the order for specific performance was never argued on by the parties. It was an issue the court raised and determined on its own.

Having not specifically raised the issue or addressed the court on it, the appellant felt his right to fair hearing had been violated. For this he lodged a further appeal at the Supreme Court.

In his arguments, the appellant posited that the refusal of the Court of Appeal to grant the order of specific performance breached his right to fair hearing because it was not based on issues that were raised or argued on by the parties.

According to the appellant’s view, after finding that the respondent sold his property to the appellant, the proper consequential order to make was that of specific performance. A refusal to do so was considered by the appellant as taking back with its left hand what the court granted with the right.

The appellant further submitted that there was no evidence showing that the Statute of Limitation of Oyo State applied in Osun State, where the disputed land was situated. On he issue of deceit, the appellant submitted that by Order 25 Rule 6 of the High Court of Osun State (Civil Procedure) Rules, issues of fraud and deceit were to be specifically pleaded by a party relying on same.

In reply, the respondent argued that the issue of the sale agreement being deceitful was one made in passing which did not form the crux of the Court of Appeal’s decision, adding that appeal based on a passing comment of the court ought to be struck out as incompetent.

Alternatively, the respondent argued that assuming the issue of deceit formed the crux of the Court of Appeal’s decision, it was an issue of law, and not facts, which could be raised by the court without giving parties a chance to address he court on it. Also, the respondent argued that in order for the Court of Appeal’s decision to be set aside, the appellant had to establish that injustice was occasioned to him by it. He appellant in turn contradicted he respondent’s submission that he appealed against a passing comment of the Court of Appeal.

After considering the Court of Appeal’s decision, the court agreed with the appellant that the decision regarding the applicability of the Limitation Law of Oyo Sate formed part of the court’s main decision. This was because, the Court of Appeal refused to order specific performance having found the backdating in the ratification document deceitful, and the action, statute barred under the Limitation Law of Oyo State.

Thereafter, the court considered the Court of Appeal’s decision refusing to order specific performance based on issues raised on its own, as occasioning substantial injustice. In the words of the court, “…in the absence of a respondent’s notice, if the lower court intended to refuse the prayer for specific performance on any ground other than the ground relied upon by the trial court, such as the alleged fraud occasioned by the backdating of Exhibit A, the parties ought to have been invited to address it on he issue.”

The apex court considered the Court of Appeal’s refusal to order specific performance based on a ground not addressed by the appellant, as breaching section 36 (6) of the Nigerian Constitution dealing with the right to fair hearing. As a result, it was set aside and remitted back to the Court of Appeal for re-hearing on the issue of specific performance by a different panel.