(2016) LPELR-40227(CA)

Transcription

1 DILLI v. ADAMU & ANOR CITATION: MOORE ASEIMO A. ADUMEIN TANI YUSUF HASSAN JOSEPH EYO EKANEM In the Court of Appeal In the Abuja Judicial Division Holden at Abuja ON TUESDAY, 8TH MARCH, 2016 Suit No: CA/A/236/2008 Before Their Lordships: Between Justice, Court of Appeal Justice, Court of Appeal Justice, Court of Appeal MRS. MIRIAM DILLI (Substituted by order of the Court of Appeal dated 8th May 2012 for the deceased original Appellant ARI MODU) And ALHAJI MUHAMMED SALISU ADAMU 2. MRS AMINA FATAI BANWO (Substituted by order of the Court of Appeal for the deceased MR FATAI BANWO) - Appellant(s) - Respondent(s) RATIO DECIDENDI

2 1 JUDGMENT AND ORDER - : Whether a Court becomes functus officio after giving a decision or making an order on a matter "This Court on the 8th day of May 2012 made an order for the substitution of the original appellant with the present appellant. The order was based on a motion on notice praying for the relief and was not opposed by respondents' counsel, I agree with counsel for the appellant that this Court thus became funtus officio in respect of the standing of the present appellant for it had thus ruled that the present appellant rightly stepped into the shoes of the original appellant and assumed his position. A Court cannot give a decision or make an order twice. Once a Court gives a decision or makes an order on a matter, it no longer has the competence or jurisdiction to give another decision or order on the same matter. The Court is thus funtus officio in respect of the standing of the appellant. See MOHAMMED V. HUSSEINI (1998) 4 NWLR (584) 108, 139."Per EKANEM, J.C.A. (Pp. 9-10, Paras. D-A) - read in context 2 ACTION - LOCUS STANDI: Meaning of locus standi "The term "locus standi" or "standing" refers to the legal capacity based upon sufficient interest in a subject matter to institute proceedings in a Court of law to pursue a specific cause. It is the legal capacity to institute an action in a Court of law. Where plaintiff lacks locus standi, the Court has no jurisdiction to entertain the suit which should be struck out. See ADESANYA V. THE PRESIDENT (1981) 2 NCLR 358 and THOMAS V. OLUFOSOYE (1986) 1 NWLR (18) 669."Per EKANEM, J.C.A. (P. 18, Paras. C-E) - read in context 3 ACTION - LOCUS STANDI: The guiding principles in determining the locus standi of a party It has been held that different principles apply to the determination of the issue of locus standi in the realms of public law and private law. In the realm of public law, for an individual to invoke the judicial powers to decide on the constitutionality of legislative or executive actions, the person must demonstrate that either his personal interest will be, has been or is likely to be adversely affected by the legislative or executive actions. Alternatively, the person can demonstrate injury sustained presently or such as he is likely to suffer over and above the interest or injury suffered by the general public. In private law, locus standi merges with the cause of action See ASUU V. BPE (2013) 14 NWLR (1324) 378, 415 and 421.The Court, in determining locus standi is to examine the statement of claim to see if the plaintiff has shown; (1) An injury that he has suffered or is likely to suffer. (2) Sufficient legal interest in the subject matter of the action likely to be affected if the Court does not intervene. In other words, the Court is to see if there is a cause of action vested in the plaintiff. See THOMAS V. OLUFOSOYE supra and OWODUNNI v. REGISTERED TRUSTEES, C.C.C. (2008) 10 NWLR (675) 315 and BEWAJI V. OBASANJO (2008) 9 NWLR (1093) 540, Per EKANEM, J.C.A. (Pp , Paras. F-E) - read in context 4 LAND LAW - SALE OF LAND: Effect of a sale of land "In the case of FARASOYE V. HASSAN (2006) 16 NWLR (1006) 463, 449, it was held that "Upon the sale or alienation of landed property, all the rights and interests in the said property revert to, or become vested in the new owner or the title holder." The law is also that where a person has no legal interest in a land, he lacks the capacity to sue in respect thereof See AYORINDE V. KUFORIJI (2007) 4 NWLR (1024) 341, 356." Per EKANEM, J.C.A. (P. 20, Paras. C-E) - read in context

3 5 ACTION - LOCUS STANDI: Instances where a person will lack the locus standi to institute an action "In the case of ATTORNEY-GENERAL OF ANAMBRA STATE V. ATTORNEY-GENERAL OF THE FEDERATION (2007) 12 NWLR (1047) 1, 94, the Supreme Court stated,"and so the point must be made that where a person has brought an action claiming a relief which on the facts of the matter is referable to another... then he cannot succeed for want of locus standi simply because, there is no dispute between them."see also BEWAJI V. OBASANJO supra 573."Per EKANEM, J.C.A. (P. 21, Paras. A-C) - read in context 6 CONTRACT - PRIVITY OF CONTRACT: When a person who is not a party to a contract can seek an order of Court to set it aside "It was contended by 1st respondent'??s counsel that the argument that the 2nd respondent as the purchaser was the only person with standing to sue was misconceived on account of the doctrine of privity of contract to the effect that only a party to a contract has the locus standi to sue to set aside or enforce the same. The short answer to that is that a third person or a stranger to a deed or a contract for the sale of land whose title is affected by such a deed or contract could seek an order to set it aside it since it affects his title. See ADJARHO V. AGHOGHOVWIA (1985) 4 SC (1) 1, 6. (Also reported in (1985) 1 NSCC (VOL 16) 376, 378)."Per EKANEM, J.C.A. (Pp , Paras. F-C) - read in context 7 ACTION - CAUSE OF ACTION: Meaning of a cause of action; Whether a cause of action can arise after the issuance of a writ "It must be remembered that in the realm of private law the Court is to consider whether the plaintiff has a cause of action vested in him to determine his standing. A cause of action has been defined as;...in effect, the fact or combination of facts which gives rise to a right to sue and it consists of two elements- the wrongful act of the defendant which gives the plaintiff his cause of complaint and the consequent damage." see SAVAGE V. UWECHIA (1972) 1 ALL NLR (1) 251, 257 per FATAYI - WILLIAMS, JSC (as he then was). In Nwadialo's Civil Procedure in Nigeria 2nd Ed P.26, it is stated that, "An action relates back to the date it was commenced, that is the date of the writ and not to a subsequent date and therefore a plaintiff cannot succeed in a cause of action which did not exist on the date of the issue of the writ.. and therefore whatever happens after the writ has been issued cannot be used to find a cause of action which was not in existence at the date the writ was issued." It follows therefore that the alleged forceful takeover of possession of the property by the appellant which is pleaded in the Statement of Claim to have taken place after the issuance of the writ cannot be reckoned with in determining if there is a cause of action which vests in the 1st respondent to give him standing."per EKANEM, J.C.A. (Pp , Paras. C-C) - read in context 8 COURT - DUTY OF COURT: Duty of the Court of appeal to consider all issues before it "Being an intermediary appellant Court, I shall proceed to consider the other issues.this judgment ought to end here in appellants favour since I have found that the 1st respondent had no standing to institute the action. However since this Court is not a final appellate Court, I shall proceed to determine the remaining issues. See ADAH V. NYSC (2004) 13 NWLR (891), 639, 649."Per EKANEM, J.C.A. (P. 25, Paras. A-B) - read in context

4 9 APPEAL - INTERFERENCE WITH EVALUATION OF EVIDENCE : When can an appellate Court interfere with the evaluation of evidence of a trial Court "Evaluation of evidence and the ascription of probative value to it are the primary functions of a trial Court which saw, heard and assessed the witnesses. Where a trial Court unquestionably evaluated evidence and makes findings of facts an appellate Court will not interfere with the findings if there is evidence to support such findings. See OGUONZEE v. STATE (1998) 58 LRCN 3512, 3539, AND IRIRI V. ERHURHOBARA (1991) 2 NWLR (173) 252, 273. An appellate Court can only interfere if such findings are perverse."per EKANEM, J.C.A. (P. 26, Paras. C-E) - read in context 10 CONTRACT - TIMING IN CONTRACT: Whether the Court can infer time as being of the essence in a contract "The appellant admitted the averment in the statement of claim (paragraph 4) that the 1st respondent sold the property at N18,000,000:00 as he needed the money to execute an urgent project (see page 125 of the record and par 2 of the appellants statement of defence at page 78 of the record). This was sufficient to warrant the conclusion by the trial Court. Even though parties may not have specified time for the performance of a contract, a Court is entitled to infer from the circumstances of the contract that time is of the essence See SAKA V. IJUH (2010) 4 NWLR (1184) 405, 424."Per EKANEM, J.C.A. (Pp , Paras. F-B) - read in context 11 APPEAL - OMNIBUS GROUND OF APPEAL: Whether an omnibus ground of appeal can be used to attack specific findings of Court "I agree with 1st respondents counsel that the specific finding by the trial Court that time was of the essence of the contract can only be questioned by a ground specifically attacking the issue. An omnibus ground cannot be used to attack such a finding. See NKWOCHA V. MTN (NIG) COMMUNICATION LTD (2008) 11 NWLR (1099) 439, 464."Per EKANEM, J.C.A. (P. 27, Paras. C-D) - read in context 12 CONTRACT - TIMING IN CONTRACT: Position of the law where it is not expressly stated that time is of the essence in a contract "Thus the finding that time was of the essence of the contract stands. Even if time was not of the essence, which is not so, the law demands that the contract be performed within a reasonable lime. See EDEM V. CANON BALLS LTD (2005) 12 NWLR (938) 27, 56."Per EKANEM, J.C.A. (P. 27, Paras. D-E) - read in context

5 13 LAND LAW - SALE OF LAND: Position of the law on part payment in a contract of sale "...Counsel for the appellant gave a negative answer. He relied on BIYO V. AKU (1996) 1 NWLR (422) 1, 24 where Okezie JCA stated that;"in the case of Deposit, the Purchaser is at liberty to assume after waiting for a reasonable period of time that the purchaser/buyer was no longer interested. The vendor could sell to any other prospective buyer thereafter and return the purchaser's deposit."at page 25, His Lordship stated"... Where part payment is made the law is clear... that the contract for the purchase has been concluded and is final, leaving the payment of the balance of the purchase price outstanding to be paid. 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 action lies for specific performance in breach. It does not lie in the hands of any of the parties to unilaterally by self-help revoke the contract and walk away unhurt. Each party has a right to sue in breach of contract one against the other."see also GEGE V. NANDE (2006) 10 NWLR (988) 256, 286However, counsel for the respondents cited the Supreme Court case of ODUSOGA V. RICKETTS (1997) 7 NWLR (511) 1 to counter the above authority. In that case, Ogundare, JSC, stated the law on this subject as follows at page 16"Viewed even from the standpoint of the common law, payment of purchase price coupled with possession gives the purchaser an equitable title and he is entitled to seek an order of specific performance to compel the vendor to convey legal title to him. But where the purchase price is not fully paid, the purchaser will have no right to enforce specific performance...where the Purchaser who has made a part payment of the purchase price is in default of payment of the balance, there is right in the vendor to rescind the contract of sale and re-sell the property.., Where the purchaser paid not only the deposit but also part payment of the purchase price but failed to pay the balance of the purchase price at the stipulated time, the vendor rescinded the contract. On appeal to the Privy Council per Lord Dunedin,delivering the judgment of the council observed..."the law is quite plain. If one party to a contract commits a breach then it that breach is something that goes to the root of the contract, the other party has his option. He may still treat the contract as existing and sue for specific performance, or he may elect to hold the contract as at end..."his Lordship went on to hold that the distinction between deposit and part-payment is of no significance or relevance to the right of a vendor to rescind a contract of sale of land in which the purchaser had failed to make full payment of the purchase price.being a decision of the Supreme Court, the decision in ODUSOGA V. RICKETTS supra. is binding on me and indeed has been followed by this Court In MANYA V. IDRIS (2001) 8 NWLR (716) 627. In deed in the recent case of OGUNDALU V. MACJOB (2015) 8 NWLR (1460) 96, 119, Rhodes - Vivour, JSC, re-stated the position of the law as"it follows that where the purchase price is not fully paid there can be no valid sale even if the purchaser is in possession... Where part payment of the purchase price was made and the purchaser defaults in paying the balance within a reasonable time the vendor would be at liberty to re-sell since legal title remains with the vendor until full price is paid by the purchaser."although OGUNDALU V. MACJOB supra, involved customary sale of land, the principle that the vendor is at liberty to treat the contract as at an end and has the right to re-sale the land is applicable to both customary law and common law."per EKANEM, J.C.A. (Pp , Paras. E-F) - read in context 14 ACTION - LOCUS STANDI: The effect of locus standi on the jurisdiction of a Court "The law is well settled that the question of locus standi is unarguably a threshold issue which goes to the jurisdiction of the Court. See the case of Josiah Kayode Owodunni v. The Registered Trustees of Celestial Church of Christ & 3 Ors. (2000) 10 NWLR (Pt. 675) 315. Since the 1st respondent had no locus standi to commence his action in the Lower Court, his said suit was incompetent and liable to be struck out and it is hereby struck out."per ADUMEIN, J.C.A. (Pp , Paras. E-A) - read in context

6 JOSEPH EYO EKANEM, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of the Federal Capital Territory, Abuja ('the trial Court' for short)- in Suit No. FCT/HC/CV/1442/07 delivered on the 15th day of May, In the judgment, the trial Court found for the 1st respondent (as plaintiff) and entered judgment in his favour in terms of the lst set of reliefs claimed by the 1st respondent. It is pertinent to state some of the facts of the case leading to this appeal. It is common ground between the parties that the 1st respondent was the owner of the property lying and being at Plot 8, 341 Road, A - Close, Gwarimpa 11 Estate, Abuja. The lst respondent agreed with the original appellant (Ari Modu) for a purchase of the property at the agreed sum of N18,000,000:00 (Eighteen Million Naira). An initial deposit of $10,000,00 (Ten Thousand Dollars) was paid by the original appellant in early May, 2006, pursuant to the agreement. The original appellant later paid a total of N10,000,000:00 (Ten Million Naira) in two instalments leaving a balance of N6,700,000:00 (Six Million, Seven Hundred Thousand 1

7 Naira) to be paid. As averred in the 1st respondents statement of claim, when the original appellant failed to pay the balance inspite of his demands and his (appellant's) promises, the 1st respondent assigned the property to the 2nd respondent who paid him the sum of N18,000,000:00 (Eighteen Million Naira) as full and final payment for the property. The original appellant rejected a refund of the money paid by him to the 1st respondent and insisted on paying the balance. The 2nd respondent also refused an offer of a refund of the purchase price and insisted on having the property. Consequent upon the above, the 1st respondent took out an Originating Summons against the original appellant and 2nd respondent for the determination of certain questions and reliefs pertaining to the property and the transactions with them relating to the property. The trial Court found that the suit was not properly commenced by Originating Summons and therefore ordered the parties to the pleadings, which order was complied with. In the statement of claim of the 1st respondent, the 1st respondent claimed as follows: "i) A DECLARATION that there was no valid

8 agreement of sale between the plaintiff and the 1st Defendant in respect of Plot 8, 341 Road, A-Close, Gwarimpa 11 Estate Abuja, the subject matter of this suit or that any agreement between plaintiff and 1st Defendant has been terminated due to failure of 1st Defendant to meet up with conditions of the contract. ii. A DECLARATION that the contract agreement between the plaintiff and the 2nd Defendant is valid and subsisting. iii. A DECLARATION that the 1st Defendant is in unlawful possession of the subject matter of this suit having forcefully gained entry without the permission of the plaintiff. iv. A DECLARATION that all the improvements effected on the subject matter by the 1st defendant were unlawfully done at his peril having been done without the consent of the plaintiff. v. AN ORDER that the 1st Defendant vacates the premises of the subject matter and delivers possession to the plaintiff or the 2nd Defendant as this Honourable Court may deem fit. vi. AN ORDER of Perpetual Injunction restraining the 1st Defendants, his agents, privies, servant or anybody howsoever described from further trespass of the property, the subject 3

9 matter of this suit. vii. AN ORDER of Perpetual Injunction retraining the 1st Defendants, his agents, privies, servants or anybody howsoever described from disturbing or frustrating the contract entered into between the plaintiff and the 2nd Defendant without any lawful justification. viii. N20,000, (Two Million Naira Only) as damages against the 1st Defendant for trespass on the Plaintiff's property by agents and representatives of the 1st Defendant since June 2007 till date. ix. AN ORDER directing that the 1st Defendant collect all the money he has paid to the plaintiff in respect of the subject matter of this suit if this Honourable Court rules in favour of the contract entered into between the plaintiff and the 2nd Defendant. In the ALTERNATIVE i) A DECLARATION that the contract agreement between the Plaintiff and the 1st Defendant is valid. ii) AN ORDER that the 1st Defendant pays up the outstanding balance of N6,700, (Six Million, Seven Hundred Thousand Naira Only) on the property. iii) AN ORDER directing that the 2nd Defendant collects all the money he has paid to the Plaintiff in respect of the subject

10 matter of this suit and surrender all documents already handed over to him for onward transfer to the 1st Defendant of this Honourable Court rules in favour of the 1st Defendant. ' The trial Court, as earlier stated, granted the first set of reliefs. Aggrieved by the decision, the appellant has appealed to this Court by way of a notice of appeal bearing seven grounds of appeal. It is pertinent to mention that following the death of the original appellant, he was substituted with the present appellant (Mrs Miriam Dilli) on the order of this Court made on 8/5/2012 The appellant s amended brief of argument, settled by F. R. Onoja. Esq; was filed on 20/3/2009. Five issues are therein formulated for the determination of the appeal. The issues are: "1. Whether the plaintiff had locus standi to institute the action in the Lower Court (Distilled from Grounds 2, of the Grounds of Appeal). 2. Whether the learned trial Judge property evaluated the evidence and gave right conclusion in the judgment delivered. (Distilled from the omnibus ground). 3. Whether the learned trial Judge was right to hold, that the contract for the

11 sale of the property between the Appellant and the 1st Respondent had been rescinded or terminated by the conduct of the Appellant in not paying the balance of the purchase price. (Distilled from Grounds 5 and 6 of the Grounds of Appeal). 4. Whether the learned trial Judge was right in directing that the Appellant should vacate the property in dispute and deliver possession to the Plaintiff? (Distilled from Ground 4 of the Grounds of Appeal). 5. Whether the payments made by the Appellant for the property were deposits or part payment in law (Distilled from Ground 7). In the 1st respondents further amended brief of argument settled by Kehinde Ogunwumiju, Esq; the following issues are identified for the determination of the appeal; "(i) Whether or not the 1st respondent (as plaintiff) possessed the locus standi to institute this action at the Lower Court (Ground 2). (ii) Whether or not the Lower Court was right when it held that the agreement of sale between the 1st respondent (Plaintiff) and the appellant was validly rescinded by the 1st respondent and that the sale of the property in issue to the 2nd respondent was valid (Grounds 1, 4,

12 , 5, 6 and 7) In the 2nd respondent's brief of argument settled by Ayo Omoleaupen, Esq; the following issues are formulated for the Court s determination of the appeal. "1. Whether or not the learned trial Judge was right when he held that the 1st Respondent (as plaintiff) possessed the locus standi to institute this action (ground 2) 2. Whether or not the Lower Court was right when it held that that the contract of sale between the 1st Respondent and the Appellant was validly rescinded or terminated by the 1st Respondent and the sale of the properly in issue was validity sold by the 1st Respondent to the 2nd Respondent (Grounds 1, 3, 4, 5, 6 and 7)." It must be mentioned that the 1st respondent filed a notice of preliminary objection to the appeal. The grounds for the objection are stated as follows: -The appellant does not possess the locus standi to sustain this appeal. - Where an appellant lacks the locus standi to sustain an appeal, this Honourable Court would be bereft of jurisdiction to entertain same. - Ground 3 of the Notice of Appeal has been abandoned." Arguments on the preliminary objection are 7

13 contained in pages 4-9, pars of the 1st respondents further amended brief of argument. The 2nd respondent filed a separate notice of preliminary objection which is also grounded on locus standi. The arguments in respect thereof are contained in pages 4-10, par of the 2nd respondents brief of argument. Appellant s counsel filed an amended reply brief containing, inter alia, a response to the preliminary objection. On 4/2/2016, when the appeal came up for hearing, counsel for the respondents sought of and were given leave to argue the preliminary objection before the appeal was heard. I shall first dealt with the preliminary objection. The sum of the contention of the respondents in the preliminary objection is that the appellant (though substituted for the deceased original appellant) not being the legal representative or successor of the original appellant lacks any interest in the property in dispute especially as the facts upon which she relied upon to establish her interest are at variance with both the pleadings and the record of appeal References were made to the affidavit in support of the application for

14 substitution and the pleadings. In support, the cases of RE: OTUEDON (1995) 4 NWLR (392) 655, BINTUMI V. FANTAMI (1998) 13 NWLR (581) 264 and OKUNZUA V. DOHERTY (2010) ALL FWLR (528) 929, among other cases, were cited. In response, appellant's counsel, stated that by the grant of the order of substitution an 8/5/2012 this Court was satisfied that the appellant is the proper person lo step into the shoes of the deceased original appellant. He submitted that the Court became funtus officio and the respondents could only challenge the standing of the appellant on appeal to the Supreme Court. This Court on the 8th day of May 2012 made an order for the substitution of the original appellant with the present appellant. The order was based on a motion on notice praying for the relief and was not opposed by respondents' counsel, I agree with counsel for the appellant that this Court thus became funtus officio in respect of the standing of the present appellant for it had thus ruled that the present appellant rightly stepped into the shoes of the original appellant and assumed his position. A Court cannot give a decision or make an order twice. Once a Court

15 gives a decision or makes an order on a matter, it no longer has the competence or jurisdiction to give another decision or order on the same matter. The Court is thus funtus officio in respect of the standing of the appellant. See MOHAMMED V. HUSSEINI (1998) 4 NWLR (584) 108, 139. I therefore discountenance that aspect of the preliminary objection of the respondents. The second aspect of the preliminary objection, as raised by 1st respondent's counsel is that the appellant has abandoned ground 3 of notice of appeal. Even though an attack on a ground out of several grounds of appeal ought to be launched by way of a motion on notice and not on the platform of a preliminary objection yet the Court will not overlook the fact that of the five issues formulated by the appellant for the determination of the appeal, none is said to be derived from ground 3 of the grounds of appeal. Ground 3 is therefore deemed abandoned and I accordingly strike out the same. In arguing the appeal, appellant's counsel proffered the following arguments in respects of the issues formulated by him: ISSUE 1 - Whether the plaintiff (i.e 1st respondent) has locus

16 standi to institute the action in the Lower Court. Counsel stated that the single reason for the action in the trial Court was, according to the 1st respondent, to prevent a 'show down" between the appellant and 2nd respondent over the property. He set out two tests for locus standi and noted that the trial Court acknowledged that the 1st respondent did not or would not suffer any injury and that he had alienated his interest in the property. Relying on FARAJOYE V. HASSAN (2005) 16 NWLR (1005) 463, he submitted that where a person has sold his landed property to another, the vendor is divested of all interest in the property. Thus, he concluded, the 1st respondent no longer had sufficient legal interest to commence the action in respect of the property. It was his view that the 1st respondent could not be heard on the claims which were brought on behalf of the two contestants to the ownership of the property. On this, he cited and relied on ATTORNEY-GENERAL OF ANAMBRA STATE V. ATTORNEY- GENERAL OF THE FEDERATION (2007) 12 NWLR (1047) 1 ISSUE 2 Whether the learned trial Judge property evaluated the evidence and came to the right conclusion in

17 the judgment delivered. Counsel submitted that it was not in dispute that there was an agreement between the appellant and the 1st respondent for the sale of the property. It was his view that only two issues were joined viz (1) whether time was of the essence in the contract (2) Whether the appellant took possession of the property by force. He submitted that the facts were evenly balanced on the imaginary scale of justice and that the trial Court's reliance on the demeanour of the appellant to tilt the scale of justice in favour of the 1st respondent was unjustified. This, according to him, is because the trial Court did not state what in the demeanour of the appellant led it to hold that he was not a witness of truth. He noted that the time frame for the "urgent project" the 1st respondent needed the money (the price of the sale) was not stated. He finally submitted, under this issue, that the decision of the trial Court that the appellant took possession of the property by force was not borne out by evidence and ought to be set aside. ISSUE 3 - Whether the learned trial Judge was right to hold that the contract for the sale of the 12

18 property between the appellant and the 1st respondent had been rescinded or terminated by the conduct of the appellant in not paying the balance of the purchase price. Counsel referred to the case of BIYO V. AKU (1996) 1 NWLR (422) 1 and submitted that the Court should have come to the logical conclusion that the law that where a contract for sale of land is concluded and part payment made, the vendor is no longer at liberty to rescind the contract, applied with great force in favour of the appellant. He emphasised that in a contract for the sale of land, unlike other contracts, once the terms are agreed (and especially where part payment is made) the contract becomes final and absolute. The vendor cannot re-sale and his fight is limited to the unpaid balance. He also cited OGBEIDE V. OSIFO (2007) 3 NWLR (1022) 423 in support ISSUE 4 Whether the learned trial Judge was right in directing that the respondent should vacate the property in dispute and deliver possession to the plaintiff (1st respondent). Counsel submitted that since the 1st respondent clearly alienated all his interest in the property, there was no basis to order the

19 appellant to give vacant possession to the 1st respondent. ISSUE 5 - Whether the payments made by the appellant for the property were deposits or part payment. Counsel submitted that if the trial Court had adverted its mind to the additional payments of a total sum of N10,000,000:00 it would have come to a different conclusion as to whether the payments made by the appellant were deposit or part payment. He finally urged the Court to allow the appeal. For the 1st respondent, the following arguments were offered in respect of issues identified by his counsel. ISSUE 1 Whether or not the 1st respondent (as plaintiff) possessed the locus standi to institute the action at the Lower Court. Relying on the cases of P. M. LTD V. THE "M. V. DANCING SISTER" (2014) 4 NWLR (1289) 169 and OWODUNNI V. REGISTERED TRUSTEES OF CCC (2000) 10 NWLR (675) 315, Counsel submitted that there was a dispute between the parties as to whether the sale of the property to the appellant by the 1st respondent was still valid; whether he (1st respondent) could rescind the sale and validly sell to the 2nd respondent. He referred to the statement of claim 14

20 and submitted further that by the action, the 1st respondent called upon the Court to determine his rights and obligations which counsel set out. It was his argument that if the 1st respondent had not taken out the action, he would have ended up being sued by the 2nd respondent and being found liable for breach of contract since he would not have been able to deliver vacant possession of the property to the 2nd respondent because the appellant had forcefully taken possession of the same based on a terminated agreement. It was his view that the 1st respondent had shown special interest to be protected. ISSUE 2 Whether or not the Lower Court was right when it held that the agreement of sale between the 1st respondent (Plaintiff) and the appellant was validly respondent (Plaintiff) and the appellant was validly rescinded by the 1st respondent and that the sale of the property in issue lo the 2nd respondent was valid. Counsel contended that the decision of the trial Court validating the rescission of the agreement between the appellant and the 1st respondent ought to be affirmed for the reasons that he set out in his brief of argument. He submitted 15

21 that it is settled that it is the exclusive and primary duty of the trial Court to evaluate evidence before it and make primary findings of facts on the evidence and the credibility of witnesses and an appellant Court ought not to interfere with findings of facts made by the trial Court. He cited and relied on IRIRI V. ERHURHOBARA (1991) 2 NWLR (173) 252. He however conceded that this Court has the power to set aside findings of facts of a trial Court if they are perverse. It was his submission that the findings made by the trial Court were not perverse. He set out the findings, the pleadings and evidence in respect thereof to justify the findings. Counsel further submitted that having failed to appeal against specific findings, the appellant is bound by them and the omnibus ground does not help him. Counsel referred to and quoted in extenso the case ODUSOGA V. RICKETTS (1997) 7 NWLR (511) 1 as being the most instructive of all the decisions relevant to the point whether the payment made by the appellant were part-payment or deposit. It was his submission that trial Court was right to hold that the sale to the 2nd respondent was valid. For the

22 2nd respondent, the following arguments were proffered: ISSUE 1- Whether or not the learned trial Judge was right when he held that the 1st respondent (as Plaintiff) possessed the locus standi to institute this action. Counsel argued in the same vein as 1st respondent's counsel. He emphasised that the statement of claim showed a dispute between the parties and that the action is justiciable. ISSUE 2 Whether or not the Lower Court was right when it held that the contract of sale between the 1st respondent and the appellant was validly rescinded or terminated by the 1st respondent and that the sale of property in issue was validly sold by the respondent tor the 2nd respondent. Counsel gave an affirmative response to the issue. He urged the Court not to disturb the trial Court's findings as they are not perverse. He stated that the appellant did not challenge or controvert the evidence of the 1st respondent and as such the findings of the trial Court based on it should not be set aside. It is my view that three issues arise for the determination of the appeal; The issues are; (1) Whether the 1st respondent had 17

23 the locus standi to institute the action. (2) Whether trial Court was right in holding that the contract for the sale of the property between the appellant and 1st respondent was validly rescinded and that the sale of the property to the 2nd respondent was valid, (3) Whether the trial Court was right in ordering the appellant to deliver up possession of the property to the 1st respondent. ISSUE 1 Whether the 1st respondent had the locus standi to institute the action. The term "locus standi" or "standing" refers to the legal capacity based upon sufficient interest in a subject matter to institute proceedings in a Court of law to pursue a specific cause. It is the legal capacity to institute an action in a Court of law. Where plaintiff lacks locus standi, the Court has no jurisdiction to entertain the suit which should be struck out. See ADESANYA V. THE PRESIDENT (1981) 2 NCLR 358 and THOMAS V. OLUFOSOYE (1986) 1 NWLR (18) 669. It has been held that different principles apply to the determination of the issue of locus standi in the realms of public law and private law. In the realm of public law, for an individual to

24 invoke the judicial powers to decide on the constitutionality of legislative or executive actions, the person must demonstrate that either his personal interest will be, has been or is likely to be adversely affected by the legislative or executive actions. Alternatively, the person can demonstrate injury sustained presently or such as he is likely to suffer over and above the interest or injury suffered by the general public. In private law, locus standi merges with the cause of action See ASUU V. BPE (2013) 14 NWLR (1324) 378, 415 and 421. The Court, in determining locus standi is to examine the statement of claim to see if the plaintiff has shown; (1) An injury that he has suffered or is likely to suffer. (2) Sufficient legal interest in the subject matter of the action likely to be affected if the Court does not intervene. In other words, the Court is to see if there is a cause of action vested in the plaintiff. See THOMAS V. OLUFOSOYE supra and OWODUNNI v. REGISTERED TRUSTEES, C.C.C. (2008) 10 NWLR (675) 315 and BEWAJI V. OBASANJO (2008) 9 NWLR (1093) 540, A close reading of the statement of claim especially paragraphs 1, 4, 5, 6, 7, 19

25 8, 9, 10, 12, and 15 shows that the subject matter of the action is the property known as Plot 8, 341 Road, A - Close, Gwarimpa 11 Estate, Abuja. The property was originally owned by the 1st respondent but according to the statement of claim, he had divested himself of his interest therein in favour of the 2nd respondent after the appellant had breached the earlier contract of the sale of the property. It follows therefore that the 1st respondent, having assigned his interest in the property to the 2nd respondent no longer had sufficient interest in the subject matter of the suit to sustain a standing to sue thereon. In the case of FARASOYE V. HASSAN (2006) 16 NWLR (1006) 463, 449, it was held that "Upon the sale or alienation of landed property, all the rights and interests in the said property revert to, or become vested in the new owner or the title holder." The law is also that where a person has no legal interest in a land, he lacks the capacity to sue in respect thereof See AYORINDE V. KUFORIJI (2007) 4 NWLR (1024) 341, 356. A close look at the reliefs in the statement of claim especially reliefs (i)- (viii) shows that they in

26 essence enure to the benefit of the 2nd respondent. They are aimed at confirming and vindicating 2nd respondent's title to the property. In the case of ATTORNEY-GENERAL OF ANAMBRA STATE V. ATTORNEY-GENERAL OF THE FEDERATION (2007) 12 NWLR (1047) 1, 94, the Supreme Court stated, "And so the point must be made that where a person has brought an action claiming a relief which on the facts of the matter is referable to another... then he cannot succeed for want of locus standi simply because, there is no dispute between them." See also BEWAJI V. OBASANJO supra 573. In paragraphs 24 of the Statement of Claim, it is averred thus, "That the plaintiff has no interest in the subject matter of this suit beyond the receipt of the N18,000,000:00 purchase price from any of the parties." Having received the N18,000,000:00 purchase price from the 2nd respondent in full and having assigned the property to the 2nd respondenl, he, based on par. 24 of the statement of claim, has no Interest in the property to ground his standing. It was contended by 1st respondent's counsel that the argument that the 2nd respondent as the purchaser

27 was the only person with standing to sue was misconceived on account of the doctrine of privity of contract to the effect that only a party to a contract has the locus standi to sue to set aside or enforce the same. The short answer to that is that a third person or a stranger to a deed or a contract for the sale of land whose title is affected by such a deed or contract could seek an order to set it aside it since it affects his title. See ADJARHO V. AGHOGHOVWIA (1985) 4 SC (1) 1, 6. (Also reported in (1985) 1 NSCC (VOL 16) 376, 378). Besides, the 1st respondent did not sue for a setting aside of his agreement with the appellant. The alternative reliefs (i) (ii) and (iii) are completely out of tune with the averment in the statement of claim and so cannot be used as a yardstick to determine locus standi. It was argued by 1st respondent's counsel that if the 1st respondent did not sue, the 2nd respondent would have sued him and he would have been found liable for breach of contract since he would not have been able to deliver vacant possession of the property to 2nd respondent as appellant had forcefully taken possession of it (See page.14 par. 5.10

28 of the 1st respondent's brief of argument); Now, paragraphs 19 and 20 of the statement of claim show that the alleged forceful takeover possession of the property by the appellant took place after the institution of the suit by the 1st respondent. In deed paragraph 20 of the Statement of Claim states in part that; "When the plaintiff discovered that the 1st Defendant had forcefully taken possession of the subject matter of this suit without waiting for the outcome of this matter which was already before this Honourable Court..." It must be remembered that in the realm of private law the Court is to consider whether the plaintiff has a cause of action vested in him to determine his standing. A cause of action has been defined as;...in effect, the fact or combination of facts which gives rise to a right to sue and it consists of two elements- the wrongful act of the defendant which gives the plaintiff his cause of complaint and the consequent damage." see SAVAGE V. UWECHIA (1972) 1 ALL NLR (1) 251, 257 per FATAYI - WILLIAMS, JSC (as he then was). In Nwadialo's Civil Procedure in Nigeria 2nd Ed P.26, it is stated that, "An

29 action relates back to the date it was commenced, that is the date of the writ and not to a subsequent date and therefore a plaintiff cannot succeed in a cause of action which did not exist on the date of the issue of the writ.. and therefore whatever happens after the writ has been issued cannot be used to find a cause of action which was not in existence at the date the writ was issued." It follows therefore that the alleged forceful takeover of possession of the property by the appellant which is pleaded in the Statement of Claim to have taken place after the issuance of the writ cannot be reckoned with in determining if there is a cause of action which vests in the 1st respondent to give him standing. Even if it was otherwise it would still not prop the 1st respondent's standing as the forceful possession would be a wrong against 2nd respondent's proprietary and possessory interests in the property. This would make him the person with standing to sue thereon and not the 1st respondent. It is therefore my conclusion that the trial Court erred in holding that the 1st respondent had locus standi to instituted the action. I 24

30 therefore resolve Issue 1 in appellants favour. Being an intermediary appellant Court, I shall proceed to consider the other issues. This judgment ought to end here in appellants favour since I have found that the 1st respondent had no standing to institute the action. However since this Court is not a final appellate Court, I shall proceed to determine the remaining issues. See ADAH V. NYSC (2004) 13 NWLR (891), 639, 649. ISSUE 2 - Whether the trial Court was right in holding that the contract for the sale of the property between the appellant and the 1st respondent was validly rescinded and that the sale of the property to the 2nd respondent was valid. It is common ground that there was an agreement for the sale of the property by the 1st respondent to the appellant for the sum of N18,000,000:00 and that the appellant paid an initial deposit of $10,000:00 (Ten Thousand Dollars) in early May 2006 and subsequently made part payment totaling N10,000,000:00 (Ten Million Naira) in two equal instalments. Again, it is common ground that as at 21/2/2007 when the 1st respondent sold the property to the 2nd respondent, the appellant had not

31 paid the balance of N6,700, (Six Million, Seven Hundred Thousand Naira). The contention was whether or not time was of the essence of the contract. The trial Court held at page 302 of the record of appeal that, "In this vain, I agree with the plaintiff in his evidence when he said that he needed the money for an urgent project and therefore by implication time was of the essence in the conclusion of the contract." Evaluation of evidence and the ascription of probative value to it are the primary functions of a trial Court which saw, heard and assessed the witnesses. Where a trial Court unquestionably evaluated evidence and makes findings of facts an appellate Court will not interfere with the findings if there is evidence to support such findings. See OGUONZEE v. STATE (1998) 58 LRCN 3512, 3539, AND IRIRI V. ERHURHOBARA (1991) 2 NWLR (173) 252, 273. An appellate Court can only interfere if such findings are perverse. I do not see any reason to interfere with the finding of the trial Court. The appellant admitted the averment in the statement of claim (paragraph 4) that the 1st respondent sold the property at N18,000,000:00 as he

32 needed the money to execute an urgent project (see page 125 of the record and par 2 of the appellants statement of defence at page 78 of the record). This was sufficient to warrant the conclusion by the trial Court. Even though parties may not have specified time for the performance of a contract, a Court is entitled to infer from the circumstances of the contract that time is of the essence See SAKA V. IJUH (2010) 4 NWLR (1184) 405, 424. I agree with 1st respondents counsel that the specific finding by the trial Court that time was of the essence of the contract can only be questioned by a ground specifically attacking the issue. An omnibus ground cannot be used to attack such a finding. See NKWOCHA V. MTN (NIG) COMMUNICATION LTD (2008) 11 NWLR (1099) 439, 464. Thus the finding that time was of the essence of the contract stands. Even if time was not of the essence, which is not so, the law demands that the contract be performed within a reasonable time. See EDEM V. CANON BALLS LTD (2005) 12 NWLR (938) 27, 56. It is common ground that the appellant paid an initial deposit of $10,000:00 and the sum of N10,000,000:00 in two equal instalments

33 leaving a balance of N6,700,000,00. It was the case of the 1st respondent that inspite of his demands for payment of the balance, the appellant defaulted. The appellant's case was that the 1st respondent made no demand for the payment of the balance before he sold the property to the 2nd respondent. At page 271 of the record of appeal, the appellant testified in cross examination that, "He (1st respondent) demanded for his money but I was out of the country in America. When I returned I gave him about N2,000,000:00 (Two Million Naira) but he rejected it." (Words in bracket are mine for clarity). This shows clearly that the 1st respondent demanded for the payment of the balance of N6.7 Million but the appellant failed or refused to pay up the amount. Was the 1st respondent right to treat the contract for the sale of the property as at an end and to proceed to sell the property to the 2nd respondent thereafter? Counsel for the appellant gave a negative answer. He relied on BIYO V. AKU (1996) 1 NWLR (422) 1, 24 where Okezie JCA stated that; "In the case of Deposit, the Purchaser is at liberty to assume after waiting for a reasonable

34 period of time that the purchaser/buyer was no longer interested. The vendor could sell to any other prospective buyer thereafter and return the purchaser's deposit." At page 25, His Lordship stated "... Where part payment is made the law is clear... that the contract for the purchase has been concluded and is final, leaving the payment of the balance of the purchase price outstanding to be paid. 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 action lies for specific performance in breach. It does not lie in the hands of any of the parties to unilaterally by self-help revoke the contract and walk away unhurt. Each party has a right to sue in breach of contract one against the other." See also GEGE V. NANDE (2006) 10 NWLR (988) 256, 286 However, counsel for the respondents cited the Supreme Court case of ODUSOGA V. RICKETTS (1997) 7 NWLR (511) 1 to counter the above authority. In that case, Ogundare, JSC, stated the law on this subject as follows at page 16 "Viewed even from the standpoint of the common law, payment of purchase price coupled

35 with possession gives the purchaser an equitable title and he is entitled to seek an order of specific performance to compel the vendor to convey legal title to him. But where the purchase price is not fully paid, the purchaser will have no right to enforce specific performance...where the Purchaser who has made a part payment of the purchase price is in default of payment of the balance, there is right in the vendor to rescind the contract of sale and re-sell the property.., Where the purchaser paid not only the deposit but also part payment of the purchase price but failed to pay the balance of the purchase price at the stipulated time, the vendor rescinded the contract. On appeal to the Privy Council per Lord Dunedin, delivering the judgment of the council observed... "The law is quite plain. If one party to a contract commits a breach then it that breach is something that goes to the root of the contract, the other party has his option. He may still treat the contract as existing and sue for specific performance, or he may elect to hold the contract as at end..." His Lordship went on to hold that the distinction between deposit and

36 part-payment is of no significance or relevance to the right of a vendor to rescind a contract of sale of land in which the purchaser had failed to make full payment of the purchase price. Being a decision of the Supreme Court, the decision in ODUSOGA V. RICKETTS supra. is binding on me and indeed has been followed by this Court In MANYA V. IDRIS (2001) 8 NWLR (716) 627. In deed in the recent case of OGUNDALU V. MACJOB (2015) 8 NWLR (1460) 96, 119, Rhodes - Vivour, JSC, re-stated the position of the law as "It follows that where the purchase price is not fully paid there can be no valid sale even if the purchaser is in possession... Where part payment of the purchase price was made and the purchaser defaults in paying the balance within a reasonable time the vendor would be at liberty to re-sell since legal title remains with the vendor until full price is paid by the purchaser." Although OGUNDALU V. MACJOB supra, involved customary sale of land, the principle that the vendor is at liberty to treat the contract as at an end and has the right to re-sale the land is applicable to both customary law and common law. It is therefore my