Legal Nuggets (Series 97): ISSUE -Effect of Failure to Establish a Valid Contract of Sale of Land/Property .- By Adedotun Habeeb Adetunji, LL.M (M.IoD), FCAI'

ISSUE: CONTRACT OF SALE OF LAND/PROPERTY-Effect of failure to establish a valid contract of sale of land/property.
"It is not in doubt that the appellant gave N6,500,000, to the respondent, that much is admitted even by the respondent. It is also not in doubt that the appellant is in possession of Exhibits A, B and C, the title documents to the property in dispute. What is indeed in dispute is whether the money was a loan or part of the purchase price, and the title documents were a collateral or transfer of title. For a contract to take effect, there must be in existence a binding contract between parties; the parties must be ad idem, by reason of agreement or meeting of their respective minds, as to the desire to enter into the said contract. They must mutually consent to an offer and an acceptance, which expresses itself in their readiness to accept and give on the terms of the desired contract; see BILANTE INTERNATIONAL LTD V. NDIC (2011) LPELR - 78 (SC) and OKUGBULE & ANOR V. OYAGBOLA & ORS (1990) 4 NWLR (PT.147) 723.

In order to establish the existence of a contract, there must be evidence of the agreement to enter to a contract between the parties; See AFOLABI V. POLYMERA INDUSTRIES (1967) 1 ALL NLR 144. There are five ingredients that must be present in every valid contract; they are offer, acceptance, consideration, intention to create legal relationship and capacity to contract. All these five ingredients are vital, and a valid contract cannot be formed if any of them is absent; See BFIG v BPE (2008) All FWLR (Pt. 416) 1915.

The only way a Court can determine the existence or non-existence of a contract capable of binding the parties is by methodically going through the evidence of the parties, both oral and documentary; and once the existence of a valid contract is established parties cannot unilaterally resile from the contract freely entered into. In this case because of the absence of any written agreement the trial Court had to decipher the existence or lack of one from the conduct of the parties.

The trial Court found, from the record of appeal, see page 123 to the effect that all that is in favour of the plaintiff/appellant is Exhibits A, B and C, i.e. the original letter of offer to the respondent, the receipts of payment made in respect of the house in dispute and the clearance letter, and the payment of the N6,500,000; with an agreement that when the certificate is ready the deed of assignment will be executed; see the statement of claim at pages 4 to 9 of the record of appeal and the PW1's statement on oath at pages 10 to 13 also of the record of appeal. There was clearly no tenancy agreement between the parties to show that the respondent could stay as a tenant, just as there was no agreement for the sale of the property in dispute.

The cheque for the purported payment was also paid to the respondent, in her name, and it did not indicate that it was for the purchase of the house in dispute, neither was there a receipt in acknowledgement of the purported sale. The question of how or why the appellant came in possession of Exhibits A, B and C is vehemently disputed; and one is want to ask, if indeed the appellant paid for the house, as claimed, why was the respondent allowed to stay in the house, without payment of rent, tenancy agreement or any agreement or evidence suggestive of transfer and loss of ownership for five years or even a receipt for the payment made to the respondent??

On the other hand, the respondent's case at trial was that when she was granted the offer to buy the house in dispute by the Federal Government she obtained a loan from Aso Savings and Loans, which paid off the amount due to the Federal Government; see the statement of defense at pages 31 to 33 of the record of appeal and the defendant's witness statement on oath at pages 35 to 37 of the record of appeal.

As it is, there is nothing on record presented before the trial Court, apart from the ipse dixit of the appellant, and Exhibits A, B, and C to suggest any interest in the property in dispute; and it should be borne in mind that these exhibits are all in the name of the respondent. As rightly observed by the trial Court, having claimed he paid the money to the respondent to discharge the mortgage, it would have been another thing altogether, if the appellant had paid Aso Savings and Loans directly, in which case equity might have come to his aid. I have gone through the pleadings with a tooth comb, and cannot help but agree with both learned counsel to the respondent, and the trial Court,that the issue of Section 5 (3) (c) of the Law Reform Act, 2006 raised, for the purpose of establishing that the contract was not concluded, was not pleaded, and therefore lame, same for the issue of fraud which the appellant raised several times, in total disregard of the trite position of the law that, fraud in all cases in which a party raises the issue, particulars with dates and items if necessary shall be stated in the pleadings; and the law is sacrosanct that if the commission of a crime by a party to a civil suit is directly in issue, the standard of proof required is beyond reasonable doubt; see AKINKUGBE V. EWULUM HOLDINGS LTD. & ANOR (2008) 4 SG 125 and YAKUBU V. JAUROYEL & ORS (2014) LPELR-SC. 154/2005. Courts generally are careful in the way they accept the use of the word 'fraud' by litigants in proceedings before them, because the word 'fraud' is sometimes used loosely to cover the commission of crime as well as incidents of mere impropriety; be that as it may, where the word 'fraud' is used, Courts assume allegation of criminality, and so expect nothing short of proof beyond reasonable doubt, if the allegation is to stand any chance of success; and clearly the appellant cannot be said to have proved fraud beyond reasonable doubt in this case, to be entitled to any of the reliefs sought.? Most importantly, there was no evidence establishing satisfactorily that the contract was enforceable after the condition to execute the deed, on obtaining the certificate of occupancy as claimed by the appellant; see GEORGE V. DOMINION FLOUR MILLS LTD (1963) 1 ALL NLR 71; EMEGOKWUE V. OKADIGBO (1973) 4 SC 113; OKAGBUE V. ROMAINE (1982) 5 SC 133.

If the existence of the contract had been satisfactorily established, the issue of inconclusiveness of the contract would have gained some kind of traction. But the appellant cannot in one breath claim the contract is concluded, as suggested in paragraphs 7, 8, 10, 11 and 12, of the statement of claim, and only to turn around to take some kind of advantage or benefit, by arguing that the contract was not concluded, for reasons of which Section 5(3) (C) applies; the appellant is on a slippery slope as it is. As rightly submitted for the respondent, the case of ADENIRAN V OLAGUNJU supra is least appropriate to the circumstances of this case, not least because the facts are diametrically opposed.

In ADENIRAN V OLAGUNJU supra there was oral evidence to establish the appellant offered to sell the house to the respondent, for N60,000; an offer which the respondent accepted, again the respondent in that case was introduced to the tenants as the new landlord, and he took possession, and actually carried out repairs on the property. In this case, not only is there no contract, but there was no clear proof of payment for purchase of the house in dispute.

If a contract of sale had been established, and the payment so far made was ascertained to be part payment in furtherance thereof, of purchase would have been assumed to have been concluded and final, leaving the payment of the balance outstanding to be paid; this is because the contract for the sale and purchase is absolute and complete for which each party can be in breach for non-performance, and for which an action can be maintained for specific performance; alas, that is not the case here; see MINI LODGE LTD & ANOR V NGEI & ANOR (2009) LPELR-1877-SC and NJOKU V EMENIKE & ANOR (2017) LPELR-41684-CA.

As it is, the appellant failed to establish by evidence the sales agreement, as enforceable in law, in the face of staunch denial by the respondent; and it is for this reason that the trial Court rightly found the appellant to have failed to discharge the burden placed on him to succeed on a balance of probabilities. In a claim such as this, the claimant must succeed principally on the strength of his case and not on the weakness of the defence, and this is so even if the respondent had not filed a defense at all; see FASIKUN II V. OLARONKE II (1999) 2 NWLR (PT. 589) 1 OR (1998) 1 SC 16 IDUNDUN V. OKUNMAGBA (1976) 9 - 10 SC 227, JOHN HOLT VENTURES LTD V. OPUTA (1996) 9 NWLR (PT. 470) 101, ONYEJEKWE v. THE NIGERIA POLICE COUNCIL (1996) 7 NWLR (PT. 463) 704, WAZIRI V. WAZIRI (1998) 1 NWLR (PT. 533) 322bAND U.B.A PLC V. AJILEYE (1999) 13 NWLR (PT. 633) 116.

Having resolved the sole issue for determination in favour of the respondent, against the appellant, the appeal fails for lack of merit, and it is accordingly dismissed.." Per MUSTAPHA, JCA.(Pp.l10-18, Paras. F-D).

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