OSAGIE V. OYEYINKA & ANOR

• Pages: 840-856

840

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NIGERIAN SUPREME COURT CASES

[1987] 2 N.S.C.C.

These are my reasons for allowing the appeal of the appellants and making an

order that the case be tried

de novo

at the Warri High Court.

Appeal allowed.

OSAGIE V. OYEYINKA & ANOR

JOHN A. OSAGIE



APPELLANT

V

ALHAJI S.O. OYEYINKA & ANOR



RESPONDENTS

SUIT NO. SC 194/1985

SUPREME COURT OF NIGERIA

OBASEKI,



J.S.C.

NNAMANI,



J.S.C.

UWAIS,



J.S.C.

KAR I BI -WHYTE,



J.S.C.

OPUTA,



J.S.C.

12th June, 1987

Appeal - Appeal to Supreme Court - Consideration of ground of appeal essential.

Land Law - Doctrine of lis pendens - Import and purport of doctrine -

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Applicability in Nigeria - Conveyance - Lack of - Effect -

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trust -

Vendor implied trustee of purchaser before execution of conveyance - Effect

of improper dealing with trust property.

Legislation - Judgments Act, 1839 and Land Charges Act, 1925 - applicability

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- Effect of these statutes in England - Whether or not a statute of general

application - Decision is Ogzindaini v. Araba & Barclays Bank of Mg. Ltd. -

Effect of on the doctrine of lis pendens in our courts.

Equity - Specific performance - When applicable.

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ISSUES:

1.

Whether it is sufficient for an appellate court to casually mention a ground of

appeal without considering the merit of such a ground.

2.

Whether s.7 of the Judgment Act of 1839 ought to be applied, as a statute of

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general application, by the courts when dealing with the doctrine of

Lis Pendens

in Nigeria.

3.

Whether there is a duty owed by the vendor to the purchaser as regards the

land yet to be conveyed, where the purchaser has paid the purchase

consideration to the vendor.

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4.

What interest will a purchaser for valuable consideration obtain from a vendor

under an agreement for the sale of land, in the absence of a legal conveyance?

FACTS:

The 2nd respondent had title to two parcels of land, A and B, for which he re-

ceived N3,600 and N3,000 for each of the two parcels of land respectively by way

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of purchase price from the appellant to whom he sold them. The 2nd respondent

executed two documents (Exhibits D and E) one for each piece of land in evi-

dence of the sale transactions, and in them he promised to execute a conveyance

to the appellant after he would have redeemed the title deeds from National Bank

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1

2

OSAGIE V. OYEYINKA & ANOR

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841

with whom he had deposited them as security for a loan. The appellant paid an

additional sum of N3,000 to the 2nd respondent to enable him redeem the property.

The 2nd respondent put the appellant in possession of parcel B. After redeeming

the property from the mortgage, the 2nd respondent did not execute a conveyance

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to the appellant, thereupon the appellant on 23rd October, 1974 instituted an ac-

tion against him for specific performance which action was concluded on 31st Oc-

tober, 1977. Prior to this date on the 23rd June, 1976, the 2nd respondent sold

parcel B to the 1st respondent and executed a deed of conveyance in his favour.

Later, the appellant brought this action before the Benin High Court in which he,

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claimed

inter alia

a declaration of statutory right of occupancy to the premises, an

order setting aside the conveyance from the 2nd respondent to the 1st respond-

ent and a perpetual injunction. The trial judge dismissed the appellant's claims on

the ground that all the appellant had was an equitable interest in the land. The ap-

pellant was again unsuccessful on appeal to the Court of Appeal and he further

15 appealed to the Supreme Court. The Court of Appeal had merely mentioned one

of the grounds of appeal before it without giving any consideration to it. The two

lower courts rejected the plea of

/is pendens

put forward by the appellant.

HELD:

1.

What is important for an appellate court during a trial, is not merely the mention

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of the grounds of appeal but the full consideration of all the grounds in question.

In this instant case the Court of Appeal erred in casually mentioning the 10th

ground of appeal without considering the merits of such a ground.

2.

The doctrine of

Lis Pendens

operates to prevent the effective transfer of

property in dispute during the pendency of that dispute.

Lis Pendens

applies

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notwithstanding the fact that the purchaser has notice - actual or constructive.

This situation is unlike what applies in England due to the effect of the Judgment

Act of 1839 under which

Ifs pendens

must be registered as a land charge.

However this Act does not affect the application of the common law doctrine

of

lis pendens

in our courts as decided in

Ogundaini v. Araba & Barclays Bank

30

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of Nigeria Ltd.

(1978) 6 & 8 S.C. 55 at 80 where it was held that the Judgment

Act did not come within the definition of statutes of general application in

Nigeria. Consequently in the instant appeal there is no need for notice to be

given to the purchaser and as such he buys at his own risk.

3.

Where, a purchaser has paid the purchase consideration to the vendor but the

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vendor has not yet conveyed his legal interest in the land the purchaser, an

implied trust will arise pending the execution of a formal conveyance. The

vendor thus an implied trustee owes the purchaser (the

cestuique trust)

a duty

not to use the trust property fraudulently. In the instant appeal there has been

an improper dealing with the trust property as seen from the acts of the 2nd

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defendant as regards the 2 parcels of land. These acts are tantamount to a

breach of both the duty owed to the plaintiff as purchaser and those duties

required of the 2nd defendant as an implied trustee.

4.

Where there has been no actual conveyance of a piece of land, but the

purchaser has paid some valuable consideration for the same, the only interest

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which vests in the purchaser is an equitable interest in the land. This equitable

interest can be enforced by an action for specific performance compelling the

vendor (in this case the 2nd defendant) to execute a formal conveyance in

favour of the plaintiff.

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CASES REFERRED TO IN JUDGMENT:

1.

Ogundaini v. Araba & Barclays Bank of Nigeria Limited

(1978) 6 & 8 S.C. 55

at 80.

2.

Brown v. Chapman

(1848) 6 C.B. 635.

3.

Clubb v. Wimpey

(1936) 1 All E.R. 69 & (1936) 3 All E.R. 148