ALHAJI ISA TAFIDA & ANOR v. ALHAJI YARO GARBA
(2013)LCN/6445(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 31st day of July, 2013
CA/YL/24/2012
JUSTICES
SOTONYE DENTON WEST Justice of The Court of Appeal of Nigeria
JUMMAI HANNATU SANKEY Justice of The Court of Appeal of Nigeria
IGNATIUS IGWE AGUBE Justice of The Court of Appeal of Nigeria
Between
1. ALHAJI ISA TAFIDA
2. FAMAG-JAL NIG. LTD. Appellant(s)
AND
ALHAJI YARO GARBA Respondent(s)
RATIO
WHEN A CONTRACT OF SALE IS SAID TO EXIST
A contract of sale exists where there is a final and complete agreement of the parties on essential terms of the contract, namely the parties to the contract, the property to be sold, the consideration for the sale and the nature of the interest to be granted. Once there is agreement on these essential terms a contract of sale of land or property is made and concluded.In a contract for property where part payment was paid, the law is that the contract for purchase has been concluded and is final, leaving the payment of the balance 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 an action can be maintained for specific performance”. In the recent case of Ibekwe V. Nwosu (2012) N.N.S.C.L.R. (pt. 2) 136 at 146 paras. C-D, the concept of specific performance was judicially defined by Fabiyi, JSC; as the remedy requiring the exact performance of a contract by a party bound to fulfill it. According to him: “The doctrine of specific performance is that where monetary damages would be inadequate compensation for breach of an agreement, the contractor or vendor will be compelled to perform specifically what he has agreed to do. He can for example, he ordered to execute a specific conveyance of the land.” PER AGUBE, J.C.A.
DETERMINATION OF A CONTRACT
There is no doubt that the eminent jurist of the Supreme Court had restated that time-honoured principle of the law of contract and it is trite that as a general rule, a contract may be determined either in accordance with the contractual terms such as through performance by the promisor of the exact terms he undertook to do for example in contract of sale or contract of supply of services. Equally, a contract can be brought to an end or terminated where the promisor failed to perform through breach or where he made misrepresentation or where a subsequent agreement took place. Before the above quoted part of His Lordship’s dictum, he had earlier noted thus:-” Now, where a legally permitted contract has been concluded by parties to it, the parties become bound by the terms by and conditions provided therein. None of the parties will be permitted by law to resile from such terms and conditions except for good and genuine reasons. PER AGUBE, J.C.A.
WHETHER OR NOT A CONTRACT VOLUNTARILY ENTERED BY PARTIES CAN BE VARIED OR ALTERED BY EXTRINSIC EVIDENCE
Following the resolution of issue Number One in favour of the Respondent and against the Appellant, I must state firstly in the resolution of this issue that ordinarily the position of the law as stated by the learned Counsel for the Appellant that Exhibit 4 (the Deed of Assignment) voluntarily executed by the parties cannot be altered, varied or added to by extrinsic evidence is unassailable. This is the purport of Section 132 of the Evidence Act CAP. E14, 2004 (now Section 128(1) of the Evidence Act 2011) which provides that:
“128(1) when any judgment of any Court or any other judicial or official proceedings, or any contract, or any grant or other disposition of property has been reduced to the form of a document or series of documents, no evidence may be given of such judgment or proceedings or of the terms of such contract, grant or disposition of property except the document itself, or secondary evidence of its contents in cases in which secondary evidence is admissible under this Act; nor may the contents of any such document be contradicted, altered added to or varied by oral evidence:
Provided that any of the following matters may be proved-
(a) fraud, intimidation, illegality; want of due execution; the fact that it is wrongly dated; existence or want or failure, of consideration; mistake in fact or law, want of capacity in any contracting party, or the capacity in which a contracting party acted when it is not inconsistent with the terms of the contract; or any other matter which, if proved, would produce any effect upon the validity of any document, of any part of it, or which would entitle any person to judgment, decree, or order relation to it; …..” See provisos (b) – (e) and subsections (2) and (3) of the section.
This Section of the Evidence Act as rightly submitted was given judicial assent and interpretation in the case of Ezemba V. Ibeneme (2004) 14 NWLR (pt. 894) 67, where it was held that: “it is trite law that once an agreement has been committed into writing and executed by the parties, it is binding on them and you cannot use parole evidence to alter its terms.” Although we had earlier held that Exhibit 4 is not an Agreement properly so called, since it purports to grant or dispose of the property in issue, the section ordinarily would have covered the exclusion of oral evidence to alter, add or vary it. See Dawodu V. Mojolagbe (2001) 3 NWLR (pt.703) 234, 239, Badaru V. SCB Nig. Ltd. (2003) 10 NWLR (pt. 827) 91 – 101 Awolaja V. Seatrade G. B. V. (2002) 4 NWLR (pt. 758) 520 at 534; where Ayoola, JSC construed the clause in section 132 of the Evidence Act “has been reduced to the form of a document or series of documents” to have enacted the parole evidence rule. PER AGUBE, J.C.A.
WHETHER OR NOT ONCE THERE IS A DOCUMENTARY EVIDENCE, ORAL EVIDENCE WILL BE EXCLUDED
Thus, where a party to a suit succeeds in proving that a document has been duly executed, all things being equal and duly considered, that document will authoritatively influence the Court in coming to a just determination of the case and accordingly parole evidence of the contents of the document is excluded although the weight to be attached to the document is another matter altogether. This position of the law fell for consideration, in the case of Dawodu V. Majolagbe (supra) and it was held that once there is a document evidencing the sale of landed property, oral evidence of the sale will be excluded and the question of what land was sold has to be resolved by reference to the document tendered. See further Ogbodu V. Quality Finance Ltd. (2003) 6 NWLR (pt 815) 147, 162; Kabo Air Ltd. V. INCO Bev. Ltd. (2003) 6 NWLR (pt.816) 323 and Kwara Hotels Ltd. V. Ishola (2002) 9 NWLR (pt. 773) 604. PER AGUBE, J.C.A.
WHETHER OR NOT DOCUMENTARY EVIDENCE IS THE BEST EVIDENCE
There is no doubt that the Supreme Court had decided in Egharevba V. Osagie (2010) 180 LRCN 103; and it is trite on authorities too numerous to mention that because of its permanence and durability, documentary evidence is the best evidence and the best proof of the contents of that document such that oral evidence should not be allowed to discredit or contradict the contents thereof except where fraud is pleaded. Amgbareh V. Mimra (2008) Vol. 158 LRCN 325 at 330, has also buttressed the position of the law as earlier stated on the inadmissibility of oral evidence to vary, add or alter the contents of a document except the document itself. However, with the greatest respect, the self same section 132 or 128 of the Evidence Act, by the proviso in subsections (1) (a) – (e) and subsections (2) and (3) has made room for exceptions to the general rule and they permit parole or extrinsic evidence to be admitted not withstanding that a transaction like Exhibit 4 has been reduced into writing. PER AGUBE, J.C.A.
IGNATIUS IGWE AGUBE, J.C.A. (Delivering the Leading Judgment): By a Writ of Summons dated 26th and 25th days of January, 2010 the date of filing which is unknown as there is no indication whatsoever on record to that effect and Statement of Claim dated 22nd February, 2010 date of filing also not stated; the Respondent as Plaintiff in the High Court of Justice of Taraba State, in the Jalingo Judicial Division Holden at Jalingo, before the Honourable Justice Nuhu S. Adi; sued the Appellants (then Defendants) and sought for the following Reliefs in paragraph 28 of the Statement of Claim thus:
“(a) The sum of three Million Naira (N3, 000,000.00) being balance from the sales transaction of the land in issue.
“(b) The sum of one Million Naira (N1, 000,000.00) as damages for breach of contract of sale.
“(c) Interest of 27% on the total sum of N3, 000,000.00 per annum from the date of Judgment up to execution.
“(d) Costs of filing and execution.”
The Defendants joined issues by filing their Statement of Defence dated 17th day of May, 2010 after which at the hearing the Plaintiff called two witnesses (the PW1 and PW11) who having testified, the Defendants sought leave of the Court to amend their Statement of Defence and they were duly obliged. See pages 25 – 32 of the Records. The Amended Statement of Defence dated 17th May, 2010 is as contained in pages 28 to 32 of the Records. Consequently, the Plaintiff brought a motion on Notice seeking the Court’s leave to also amend his Statement of Claim. The Amended Statement of Claim dated 18th day of October, 2010 can be seen at pages 36 to 40 of the Records.
After the respective amendments of the Parties pleadings, the Plaintiff testified as PW3 and a total of three documentary evidence were tendered and marked Exhibits 1, 2, and 3 respectively. The Defendant also testified as DW3 and called two other witness as DWI and DWII and tendered documents admitted and marked Exhibits 4, 5A, 5B and 5C, respectively. At the close of their respective cases, the learned Counsel for the parties addressed the Court and on the 20th June, 2011 following the Reply of the learned Counsel to the Defendant on points of law, the case was adjourned to 26th July, 2011 for Judgment.
In a well considered Judgment delivered on the 26th July, 2011, the learned trial Judge resolved the only issue which fell for determination in favour of the Plaintiff and held at page 85 lines 6 to 14 thus:
“I entirely agree with the submissions of the Plaintiff’s Counsel that Exhibit 7 creotes a valid contract between the Plaintiff and the 1st Defendant. The lone issue is answered in the positive, that is, the 1st transaction was valid at the time the vendor (plaintiff) entered into purported sales with the 2nd Defendant. I only need to add that even after signing Exhibit 4 the agreement in Exhibit 7 remains valid and enforceable against the parties therein except where there are disclosed vitiating factors such as fraud or misrepresentation, which is not the case here.
In the light of the above the Plaintiff’s claim succeeds as follows:..”
Dissatisfied with the judgment of the learned trial Judge, the Defendants who shall hereinafter be referred to as Appellants on the 17th day of October, 2011 filed their Notice of Appeal with three Grounds dated 15th day of October, 2011 through their Counsel A. Umar Esq. Upon transmission of the Records hereto, Briefs of Argument were exchanged by learned Counsel representing the respective parties. In the Appellant’s Brief dated the 4th day of June, 2012 and filed on the 7th day of June, 2012, A. Umar Esq. of Counsel who settled the same formulated three issues for determination hereunder reproduced as follows:-
“1. Whether the 1st Sale between the 1st Appellant (1st (Defendant) was valid at the time the Respondent (plaintiff) entered into the 2nd transaction with the 2nd Appellant (2nd Defendant)?
2. Whether Exhibit 4 can be varied, added to or altered by extrinsic evidence?
3. Whether the parties are bound by the Deed of Assignment (Exhibit 4) voluntarily signed by them?”
On the part of the Respondent, M. I. Tyonongo Esq. who settled his Brief of Argument dated and filed on the 2nd day of July, 2012, adopted the three issues formulated by the learned Counsel for the Appellants in their Brief. The brief facts of the case as can be gleaned from the pleadings of the parties at the lower Court are that the Plaintiff (now Respondent) in the lower Court claimed that the entered into an Agreement with the 1st Appellant for the 1st Appellant to purchase his 50 units of one bedroom flats at the Federal Low Costs Housing Estate lying and situate at Bali, Bali Local Government Area of Taraba State. Precisely the property lies along Bali to Takum Road at the right hand side adjacent the Primary Education Board office, Bali
They negotiated and settled for the sum of N6,000,000.00 (Six Million Naira) only as the purchase price. Upon arriving at the agreed purchase price the parties entered into and signed a Sale Agreement to that effect in November, 2007. On the date the Agreement was entered into in Jalingo the 1st Appellant made an advance payment of N500,000.00 (Five Hundred Thousand Naira) only to the Plaintiff as part payment.
According to the Respondent a Deed of Assignment was drawn up by the Appellant’s Solicitors in Jalingo in the sum of three Million Naira (N3, 000,000.00) only. The 1st Appellant was said to have requested Baba Tatu to invite the Respondent from Takum to Jalingo and Baba Tatu called the Appellant to come and collect N2,500,00.00 (Two Million Five Hundred Thousand Naira) only to make up half the purchase price to enable the parties draw up a Deed of Assignment which the Appellants would use to effect change of title at the land Registry and the balance of N3,000,000.00 shall be paid on a later date.
Upon the Respondent’s arrival in Jalingo from Takum, he was taken to Baba Tatu’s house by the Appellants’ Solicitors where the Deed was signed and the sum of N2,500,000.00 paid to the Respondent. In the course of signing the Deed of Assignment the 1st Appellant decided that 2nd Appellant FAMAG -JAL NIG. LTD should then become the Assignee of the property, while the 1st Appellant was the only signatory in the part of the Assignee.
It is the further claim of the Respondent the 1st Appellant informed him to come and collect the balance of the purchase price of N3, 000,000.00 after one month from 3rd June, 2008 at which time another Deed of Assignment would have been drawn up and signed by the parties as covering the entire purchase price. At the appointed one month period the Respondent travelled to Jalingo for the balance of the purchase price only to be told by the 1st Appellant that he had already paid the full price for the land with no balance outstanding. All efforts by the Respondent to persuade the 1st Appellant to pay him the balance had proved abortive until he (the Respondent) instructed his Solicitors to write a letter of demand to the Appellants and in their reply to the Respondent’s letter of Demand, the Appellants denied purchasing the landed property in the total sum of N6 Million and also denied owing the Respondent the amount claimed.
The Respondent also averred that the persons who signed the Agreement for the sale of the landed property for Six Million Naira dated 5th November, 2007, were the persons who assisted him to get the purchaser that is the 1st Appellant, and they had agreed for those witnesses or Agents to be paid 10% of the purchase price. The sum of N6, 000,000.00 was therefore agreed to be paid and on the date the initial sum of N500, 000.00 was paid by the 1st Appellant, he had paid N200,000.00 while the sum of N100,000.00 was paid to the Agents when the sum of N2,500,000.00 was paid him by the 1st Appellant leaving a balance of N300,000.00 when the N3,000,000.00 was to be paid by the 1st Appellant. However, up to the time of filing the suit, the Appellant had refused, failed and/or neglected to pay the balance of the purchase price even when the 1st Appellant has dug a borehole on the land property which he has been using, hence the claim for the Reliefs as contained in paragraph 28 of his Amended Statement of Claim.
On their part, the 1st Defendant/Appellant on behalf of the 2nd admitted the claim of the Respondent to the extent that the Plaintiff came to his house and offered to sell his Respondent’s land at the sum of N6, 000,000.00 (Six Million Naira) only. He denied negotiating with anybody apart from the Respondent.
According to him, the transaction collapsed and he called on the Respondent and informed him accordingly that he (1st Appellant) was no longer interested in the transaction and in addition demanded for the initial N500,000.00 (Five Hundred Thousand Naira) he paid to the Respondent.
The Respondent was not able to pay back the said sum and Respondent went to Baba Tatu to go and plead with 1st Appellant but Baba Tatu declined. The 1st Appellant after conferring with the 2nd Appellant GAMAG-JAL NIG. LTD. negotiated with the Respondent and they arrived at the sum of Three Million Naira (N3,000,000.00) and the sum of N2, 500,000.00 in addition to the intial N500,000.00 earlier collected by the Respondent as total purchase price for the property as between the 2nd Appellant and the Respondent.
Accordingly they invited their (Appellant’s) Solicitor who was instructed to draw up the Deed of Assignment for the sum of N3,000,000.00 between the Respondent and 2nd Appellant. The Appellants further averred that they instructed their said Solicitor to visit the land in Bali together with the Respondent and to issue a cheque for Two Million Five Hundred Thousand Naira (2,500,000.00) to the Respondent after receiving the Original document conferring ownership of the Plaintiff and signing the Deed of Assignment. The Respondents subsequently handed over all the title documents to the Appellants’ Solicitor.
The Appellants also denied that they ever told the Respondent that he wanted to seek the Governor’s consent when the Deed was drawn up and claimed that the transaction between the Respondent and 2nd Appellant was conclusive after the Respondent collected the consideration and Deed. The 1st Appellant also denied owing the Respondent the sum of N3,000,000.00 (Three Million Naira) or any amount whatsoever nor had he dug any borehole on the landed property as there was an existing borehole thereat though not viable. He finally averred that since he bought the land he had never stepped there on but only sighted same while passing on the High way. He urged the Court to dismiss the Respondent’s claim as contained in paragraph 28 of his Statement of Claim with substantial costs.
ARGUMENTS OF COUNSEL
ISSUE NUMBER ONE (1): WHETHER THE 1ST SALE BETWEEN THE 1ST APPELLANT (1ST (DEFENDANT) WAS VALID AT THE TIME THE RESPONDENT (PLAINTIFF) ENTERED INTO THE 2ND TRANSACTION WITH THE 2ND APPELLANT (2ND DEFENDANT)?
Arguing this Issue the learned Counsel for the Appellant recalled that there were two transactions between the parties, the first being that contained in Exhibit 1 dated 5/11/2007 between the 1st Appellant and 1st Respondent and the second which was between the Respondent and the 2nd Appellant as contained in Exhibit 4 dated 3/6/2008 and also annexed to Exhibit 3. Also, the learned Counsel noted, it is not disputed that the first Agreement between the 1st Appellant and Respondent took place on 5/11/2007 and the Respondent was paid N500,000.00 and was asked to come back in a month’s time (December, 2007) and that when the Respondent came back after one month to collect the balance the contract failed and the Respondent was asked to refund the advance of N500,000.00 (Paragraphs 4 – 7 of the Defendant’s Amended Statement of Defence page 29 of the Records refers).
The learned Counsel for the Appellant also pointed out that when the Respondent was not able to refund the N500,000.00, he decided to sell the land to the 2nd Appellant who is a different personality entirely as evidenced by Exhibit 4 which fact is buttressed by the evidence of the PW1, at page 18 of the Records and corroborated by the evidence of PW2 at page 21 lines 9 -11 of the Records. He therefore submitted that from the evidence of the PW1 and Pw2, who are witnesses to the Pw3/Respondent, the first contract was rescinded. Reference was also made to page 47 of the Records where the Respondent admitted under cross-examination that the Respondent agreed that the initial sum of N500,000.00 should be part of the N2,500,000.00 (Two Million Five Hundred Thousand).
Citing Ebere V. Abioye (2005) 41 WRN 172 at 193 lines 10 – 25 per Ibiyeye, JCA; he submitted that where a purchaser has through his own fault rescinded a contract for which he has already made part payment, the seller is under an obligation at law to return to the defaulting purchaser any money already paid in fulfillment of the failed contract subject. It was further submitted on the authority of Kaydee Ventures Ltd. V. Minister of FCT (2010) Vol. 181 LRCN 93 paras. EE. and para. A. that a contract can be terminated where the promisor failed to perform through breach or where he made a misrepresentation or where a subsequent agreement took place. It was also contended that the Respondent having gone into subsequent transaction or contract with the 2nd Appellant and voluntarily tied himself to the terms contained in Exhibit 4 (Deed of Assignment dated 3rd June, 2008) he has expressly or by conduct terminated the first contract. KAYDEE VENTURES Ltd. V. Minister of FCT (supra) and Berry V. Berry (1929) 2 KB 316 cited in sagay “Nigerian Law of Contract”, page (449?) were relied upon in so submitting.
He rounded up his argument on this issue with the assertion that parties are bound by their pleadings and as pleaded by the parties, Exhibit 4 (the Deed of Assignment) was the last and final document signed by the Respondent and 2nd Appellant and accordingly such Exhibit became central to the transaction between the 2nd Appellant and Respondent. For this submission he referred us to the case of S.S.G. V. Tunji Dosunmu Ltd (2011) Vol. 194 LRCN 192 at 231; paras UJJ and 232 para A to final assert that Exhibit 4 signed by the Respondent and 2nd Appellant is binding on them on the authority of Agwunedo & 7 Ors. V. Onwumere (1994) 1 NWLR (pt. 321) 375 at 387.
ARGUMENT OF LEARNED COUNSEL FOR THE RESPONDENT ON ISSUE NUMBER ONE (1)
Reacting to the above submissions of the learned Counsel for the Appellant, M. I. Tyononjo Esq. for the Respondent argued per contra that there was only one sale transaction of the piece of land in issue as contained in Exhibit 1 (the Sales Agreement between the Respondent and the 1st Appellant) as described in Statement of claim.
We were urged to hold that from and upon a careful perusal of the printed Records there was no other sale of the land or second transaction between the Respondent and the 2nd Appellant or any other person. He then drew our attention to the evidence of the PW1 (Alhaji Yusuf Badamasi) at page 17 lines 24-27 & page 18 lines 1 – 8 of the Record of Proceedings of the lower Court and under cross-examination at page 19 lines 15 – 15 of the Records and in confirmation of the sale transaction and the evidence of the PW1, PW2 Alhaji Musa Usman corroborated same in his testimony at page 20 lines 25 – 27 and page 21 lines 1 – 9 of the Records that he was a signatory to the first Agreement. Also our attention was drawn to the evidence of the same PW2 under cross-examination at page 23 lines 1 – 2 of the Records.
Further references were also made to the evidence of the DW1, Aliyu Tafida, who testified in the same vein at page 49 lines 23- 26 of the Records, DW2; who said he did not know anything about the sale transaction in Exhibit 1 and the admission of the 1st Appellant of the transaction in Exhibit 1 at page 57 fines 11 – 18 of the Records. He therefore submitted from the foregoing that a valid, legally enforceable contract of sale of land had been entered into between the Respondent and the 1st Appellant as shown in Exhibit 1. On when a valid contract of sale of land had been entered into he cited the Supreme Court case of Mini Lodge V. Oluka Ngei (2010) ALL FWLR (pt.506) 1805 at 11810; to urge us to find and hold that the failure of the Appellants to pay the Respondents the balance of the purchase price on the concluded contract of sale amount to breach of the contract.
The learned Counsel posited still on the authority of Mini Lodge Ltd. V. Olika Ngei (supra) at page 1811; that it is trite that in a contract of sale of property where part payment had been made the contract has been concluded and is final, leaving the payment of the balance outstanding to be paid and any failure on either party to fulfill his part of the bargain is deemed as non performance and an action for specific performance can be maintained by the innocent party. As regards the contention of the 1st Appellant that he rescinded first contract, the learned Counsel for the Respondent countered by citing section 140 of the Evidence Act, 2011 to submit that the law requires that he who alleges must prove that which he alleges and that the 1st Appellant could not produce evidence before the trial Court to prove what he alleged which was within his personal knowledge. Learned Counsel for the Respondent posed the question as to what was the intention of the parties in Exhibit 1 which he answered that it is clearly that they be legally bound by the obligations entered into by them in that document having arrived at a “consensus of the minds” Reliance was placed on the case of Cooperative Development Bank PLC V. Ekanen (2010) ALL FWLR (pt.511) 833 at 835; on the legal concept of contract as enunciated above, to urge us to hold that the Respondent, having completely and fully performed his own side of the obligations as contained in Exhibit 1 it is left for the 1st Appellant to perform his own part as expressed in the document evidencing the transaction.
On the allegation by the Appellants that Exhibit 4 is also a sale Agreement evidencing the sale of the same land between Respondent and 2nd Appellant the learned Counsel argued that the Agreement and Deed are distinguishable as Exhibit 4 is a Deed of Assignment and not a sale Agreement. He referred to Section 53 of Conveyancing Act of 1881 and noted that 1st Appellant signed Exhibit 1 as a purchaser while he signed Exhibit 4 as an Assignee. He posed the question on the where about of the sale Agreement for the Second Sale if the Deed of Assignment amounted to sale the first stage supporting Exhibit 4. He then pointed out that there are two stages in Conveyancing transaction on sale of land in Nigeria and with reference to the case of International ile Industries Nig. Ltd. V. Aderemi (1999) 8 NWLR (pt. 614) 268; where the Supreme Court illustrated the two stages in conveyancing per Uwaifo JSC; citing “Barnsely’s Conveyancing Law and Procedure (1973) Edition, of page 4 and also prince Kayode Olowu V. Building Stock Ltd. (2011) ALL FWLR (pt.550) 1336 at 1338; we were urged from the above submissions to hold that Exhibit 4 was executed by the Appellants as a second stage of the sale transaction in Exhibit 1 formally vesting possession, title and rights in the land in issue in furtherance of Exhibit 1.
We were finally urged to resolve issue Number 1 (ONE) against the Appellants that only one transaction exists from the entire evidence produced before the trial Court on the printed Records.
RESOLUTION OF ISSUE NUMBER 1 (ONE)
In the resolution of this issue it is necessary to have recourse to the averments of the parties, their evidence at the trial Court and the law governing transactions of the types the parties undertook which have resulted in this Appeal. It would be recalled that the Respondent as Plaintiff in paragraphs 5 – 13 of the Amended Statement of claim pleaded as follows:-
“5. The Plaintiff avers that sometimes in the year 2007 he wanted to dispose of the landed property and he contacted some persons in Bali and Jalingo respectively to assist him secure potential buyers.
6. The Plaintiff avers further that these persons he had contacted found the 1st Defendant who negotiated and the sum of Six Million Naira (N6, 000,000.00) was finally agreed as the purchase money.
7. Upon arriving at the agreed purchase money the parties wrote and signed a sales agreement in November, 2007. The said sales agreement is hereby pleaded.
8. On the date the sales agreement was made in Jalingo only the sum of five Hundred Thousand (N500,000.00) was advanced to the Plaintiff by the 1st Defendant as part of the purchase money. The Plaintiff never at any time requested Baba Tatu or any other person to plead with the 1st Defendant to buy the land as it was the 1st Defendant himself that offered to purchase this land.
9. The Plaintiff state that a deed of assignment was drawn up by the defendants Solicitors in Jalingo in the sum of Three Million Naira (N3,000,00,00) only. The Plaintiff State further that the 1st Defendant had requested Baba Tatu to invite him from Takum to Jalingo and Baba Tatu called him from Takum on phone to come and collect the sum of N2, 500.000.00 to make up half of the purchase price to enable the parties draw up of deed of assignment which the defendants will use to effect charge of title at the Land Registry and obtain the Governor’s consent.
10. The Plaintiff was informed by the 1st Defendant and his Solicitors that he is to be paid the sum of Two Million, Five Hundred Thousand Naira (N2,500,000.00) upon signing the Deed of Assignment and the balance shall be paid on a later date i.e. the sum of N3,000,000.00. The 1st Defendant never at any point in time demand from the Plaintiff the refund of the initial N500,000.00 part payment made to him in respect of the sale transaction.
11. The Plaintiff state that upon his arrival in Jalingo from Takum he was taken to Baba Tatu’s house by Counsel to the Defendants from where the deed of assignment was signed. The amount of (N2, 500,000.00) Two Million, Five Hundred Thousand Naira was paid to the Plaintiff after which the deed of assignment was then signed as demanded by the 1st Defendant and his Solicitor.
12. The Plaintiff over that the Defendant decided that the deed be drawn up in the name of FAMAG-JAL. NIG. LTD. while he the 1st Defendant was the only signatory on the part of the Assignee. Plaintiff will rely on a copy of the deed of assignment dated 3rd days of June, 2008, in the sum of N3,000,000.00 Notice is hereby given to the Defendants to produce the original deed at the trial of this suit.
“13. The Plaintiff over that the 1st Defendant informed him to come and collect the balance of the purchase price which is three Million Naira (N1,000,000.00) after one month from the 3rd June, 2008 at which time another deed of assignment will be drawn up and signed by the parties covering the entire purchase price.”
Perhaps, it is pertinent to add paragraph 14 where in the Respondent averred that: “The Plaintiff state further that when the one month period given to him by the 1st Defendant came, he now traveled from Takum to Jalingo only to be informed by the 1st Defendant that he had already been fully paid the purchase price and no balance was outstanding.”
The PW1, Alhaji Yusuf Badamasi who was one of those who witnessed the execution of Exhibit 1 testified in Chief thus:-
“There was a time in 2007 Ali Tafida went to my resting place here in Jalingo. That he was looking for me but did not meet me. One of my friends phoned me that Ali Tafida was looking for me. I told them where they could meet me. The said Tafida went and met me. He asked me whether I know the owner of the land at Shagari Quarters, Bali, I told him the owner was staying in Takum. He said we should look for the owner of the land because somebody wanted to buy it. I looked for one Alhaji Gambo Yakubu a friend to the owner of the land. The following day the Plaintiff and Alhaji Gambo Yakubu came they met Alhaji Musa Usman and they came to me together. Then Alhaji Musa Usman, Alhaji Shehu Mohammed, Ali Tafida, Alhaji Gambo Yakubu and myself went to the house of Isa Tafida together with the Plaintiff who is the owner of the land. At the house of Isa Tafida the 1st Defendant then priced and agreed to buy the land at the rate of Six Million Naira (N6, 000,000.00). The 1st Defendant and the plaintiff agreed for sale of the land at N6, 000,000.00. An agreement was written, Five Hundred Thousand Naira (500 000,00) was paid by the 1st Defendant as deposit and the balance was to be paid at the end of the month. The agreement was signed and I also signed it. The agreement was in, the sum of N6, 000 000.00, I can identify the agreement with my name and signature.” See page 17 lines 14-27 and page 18 lines 1-8.
The Agreement was tendered through him and same was admitted and marked Exhibit 1. The PW1 in his further Evidence in-Chief stated inter alia in lines 16 – 24 of page 18 of the Records that: “After Exhibit 1 at the end of the month one Musa Usman called us to go to the house of Isa Tafida in respect of the promised payment. We went to the house around 7.30pm. He insulted us and asked that we leave his house as was not going to buy the land again. That the Governor was aware of the sales so he was not going to buy the land again. We left and that is all that I know about the transaction.”
Under cross-examination, the witness stated at page 19 lines 9 – 19, thus:
“When we went to collect the balance the 1st Defendant said, he was not paying the balance because the Governor has heard about the soles. From there I left and did not hear about the issue again. I do not know why the 1st Defendant said he was not going to pay the balance because the Governor had heard about the land.
I do not know the Defendant Company I am not aware of any transaction between the Plaintiff and 2nd Defendant. I am not aware of when the Plaintiff paid Two Million, Five Hundred Thousand Naira and he gave his witness One Hundred Thousand Naira.”
At page 19 lines 23 – 26 to page 20 lines 1 – 3, he finally stated under cross – examination that at the end of the month Alhaji Musa Usman called Shehu Mohammed, Ali Tafida, Alhaji Yaro Garba the Plaintiff and himself (the PW1) and they proceeded to the house of the 1st Defendant/Appellant together with Alhaji Musa Usman and “When we went to the house of the 1st Defendant the 1st Defendant was insulting us then Alhaji Musa Usman retaliated and the 1st Defendant kicked him with his leg.”
PW2 also confirmed that the 1st Defendant agreed to buy the land for N6, 000,000.00 and Isa told them to write an agreement. “Isa paid a deposit of Five Hundred Thousand Naira. The balance was to be paid at the end of the month. At the end of the month when we went for the balance Alhaji Isa told us he was not going to pay the balance because there was rumour in the town that he bought the land for the Governor. He said Alhaji Garba can go and sell the land and give him back his deposit, I asked him who was circulating the rumour that he bought the land for the Governor. From there he became annoyed. He was cursing me. We went out in annoyance.
We did not know what happened later, but three after days Alh. Yaro Garba the Plaintiff came to me that Isa the 1st Defendant paid him. We went to one Alhaji Adamu Baba Tatu’s house where I met Ali Tafida. I was prevented from going into the house. Alhaji Baba Tatu prevented me from going in”. See page 21 lines 1-20. Under cross-examination, the witness stated that when the Five Hundred Thousand was paid by the 1st Defendant, the balance was Five Million Five Hundred Thousand Naira. He also stated further that he did not know any transaction between the Plaintiff and the 2nd Defendant Company and he was not there when Alhaji Yaro (Plaintiff) was subsequently paid money. He was also not aware of the transaction between Alhaji Yaro and Alhaji Baba Tatu nor was he aware of the visit of the Solicitor to Alhaji Yaro on that day to Bali. He also did not know where the Plaintiff was paid the 2nd installment but he was not aware of what took place in Alhaji Baba Tatu’s house.
It would be recalled that in his evidence-in-chief the Respondent as PW3 had testified that the land in dispute which belonged to him is situate in Bali Town as described in the Statement of Claim and that some persons took him to the 1st Defendant/Appellant because those persons advertised the land to the 1st Appellant who said he wanted the land. The persons sent for him and they went to the 1st Appellant for the sale of the land at Six Million Naira (N6,000,000.00) and the 1st Appellant gave him N500,000,00 as part payment. The 1st Appellant then told him (the Respondent) and his agents to come back after one month. After one month he came with those who went to collect the money but the 1st Appellant drove them away. He returned to Takum and after three months Baba Tatu phoned him (the Respondent) and he (Respondent) went and met those who advertised the land for him and informed them about the invitation accordingly. They left for the house of Baba Tatu with Ali Tafida the elder brother to the 1st Appellant.
They left Ali Tafida in the house of Baba Tatu and accompanied the said Baba Tatu to the house of 1st Appellant and according to the Respondent:
“At the 1st Defendant’s house the 1st Defendant told us that he wanted to buy the land but we should sign a document for change of ownership at the land and survey, I told him my witness were not ground but he said there was no problem, we should just sign the document. We left without signing any document. I went and told my agents. Later Baba Tatu phoned that I should go. When I went to the 1st Defendant’s house for the second time I met the defence Counsel there. Baba Tatu told me that they needed the document in respect of the land so that they can pay me Two Million Five Hundred Thousand Naira (N2, 500.000.00). The lawyer said there was no problem and Baba Tau told me the lawyer would go with me to Bali and see the land. I gave fuelling fare and we went together with the Counsel to Bali. When we came back the Counsel brought a cheque of Two Million, Five Hundred Thousand Naira (N2,500,000.00). We went to Zenith Bank and paid in the cheque into my account. We when back with the Counsel to the house of the Baba Tatu. At the house of Baba Tatu the lawyer brought out a document for the money that was paid into my account and I signed. At the house in the presence of Ali Tafida. Baba Tatu, the lawyer and myself, Baba Tatu and Counsel to the defendants told me I should come back after one month for balance of Three Million Naira (N3,000,000.00). After the one month I came back and met the defence Counsel. He told me he did not go back to Isa. I went and met Baba Tatu who told me he could not go and meet the 1st Defendant over the issue. I went to Ali Tafida and also said he would not go and meet the 1st Defendant over the issue. It was then that I went and briefed my Counsel. My lawyer wrote to the 1st Defendant for payment of the balance. The 1st Defendant then relied sending a document that I signed to my Counsel.” That Reply from the 1st Appellant’s Solicitor was tendered as Exhibit 3 which denied owing the Respondent any money.
Apart from the above pieces of evidence from the PW1 and PW2 which tended to prove that notwithstanding Exhibit L, there was another purported Agreement in the form of Exhibit 4, the evidence of the PW3/Respondent under cross examination at page 45 lines 14 – 27 of the Records buttresses this fact when he stated thus:-
“After one month my agents went to Isa Tafida. When I came they told me what Isa Tafida told them. So I went back to Takum. I was in Court when Yusuf Badamasi and Alhaji Musa Usman the PW1 and PW2 testified. The transaction in Exhibit 1 was between 1st Defendant and myself. The lawyer to the Defendant was not around during the transaction in Exhibit 7 and the return date when I came to collect the balance.
It was in June 2008 that I was paid the N2, 500,000.00. I could remember on 2/6/2008 we were seated with Isa Tafida, Baba Tatu and Ali Tafida, when the defence Counsel was invited and I was invited. It was after we had agreed on what to do that the Counsel came. He was told of the discussion and he contributed to the discussion”.
At page 46 of the Records in lines 5-6 he admitted that: “It was after I produced my document of title that the lawyer paid me”. However, in an answer insinuating deceit, misrepresentation and fraud, he continued from lines 7 – 21, under further cross-examination on the same page 46 thus:
“Exhibit 3 is accompanied with a deed of assignment between me and 2nd Defendant. Baba Tatu was not my witness. I did not know the person who signed as my witness in the deed of assignment until my Counsel brought it to my notice that I saw Baba Tatu as my witness. They wrote three Million in the deed of assignment to achieve their aims. The deed of assignment was signed between us in June, 2008 but I went to them several times and they did not do anything that was why I took action in 2009. After the deed of assignment the 1st Defendant never called me to come for my balance. It is true after I was paid Three Million Naira Baba Tatu and the lawyer to the Defendant told me to come back after a month and collect my balance”.
It is also pertinent to note for purposes of resolving this issue that the 1st Appellant on behalf of the 2nd Appellant, admitted in paragraph 3 of their Amended Statement of Defence entering into an Agreement with Respondent to buy the property in question for N6,000,000.00 (Six Million Naira) only and paid a first installment of N500,000.00 (Five Hundred Thousand Naira) only; but added that the transaction collapsed and the 1st Appellant called the plaintiff and informed him that he was no longer interested in the transaction. Hear the Appellants in paragraphs 4-7 of the Amended Joint Statement of Defence:
“4. The 1st Defendant in further reply to paragraphs 6 and 7 of the plaintiffs Statement of Claim over that the transaction collapsed and he called the Plaintiff and informed him that he was no more interested.
5. The 1st Defendant admits paragraph 8 and further aver that after the transaction failed he (1st Defendant) demanded the Plaintiff to give him back his N500,000.00 (Five Hundred Thousand Naira) but Plaintiff was unable to pay him.
6. The 1st Defendant aver that when the Plaintiff was unable to pay back the N500,000.00 he went to one Baba Tatu in order to come and plead with him to buy the land which he declined.
7. The 1st Defendant over that after consultation on behalf of the 2nd Defendant FAMAG JAL NIG. LTD. negotiated with the Plaintiff and arrived at the sum of Three Million Naira Only (N3,000,000,00) and the sum of N2,500,000.00 was paid to the Plaintiff by the 2nd Defendant in addition to the sum of N500,000.00 earlier collected by the Plaintiff;” and in paragraph
8. The Defendants admit paragraph 9 of the Plaintiff Statement of claim and aver that after negotiating with the 2nd Defendant both parties agreed that the sum of N500,000.00 (Five Hundred Thousand Naira) which was earlier given the Plaintiff by the 1st Defendant will be part of the N1,000,000.00 (Three Million Naira) consideration between the Plaintiff and the 2nd Defendant and they invited their Solicitor and instructed him to draw up a deed of assignment in the sum of Three Million Naira only (N3,000,000.00) between the Plaintiff and FAMAG JAL NIG. LTD. the deed is hereby pleaded.”
The DW1 Aliyu Tafida testified corroborating the fact of the first transaction and the promise by the 1st Appellant to pay the balance of N5,500,000.00 after two months but when the Respondent came for the payment of the balance, the 1st Appellant alleged that the Respondent went about telling people that it was the Governor who asked the 1st Defendant to buy the land for him so the 1st Appellant rescinded the earlier transaction. The Appellant was said to have told the Respondent this when he went along with the DW1, Alhaji Musa Usman, Yusuf Badamasi and Shehu Mohammed. The 1st Appellant allegedly returned the Certificate of Occupancy to the Respondent with the instruction that any time the Respondent got the Five Hundred Thousand Naira he could refund it.
There after the Respondent came to meet him (the DW1) to help look for somebody to plead with the 1st Appellant to buy the land at whatever price because he (Respondent) needed money. The DW1, then went and called for Alhaji Baba Tatu who is a friend to the 1st Appellant and asked him to help the Plaintiff and talk to the 1st Defendant to buy the Plaintiffs land or look for somebody to buy it. Baba Tatu was said to have gone to the 1st Appellant’s house thrice but the 1st Appellant did not budge but later the 1st Appellant agreed that his company would buy the land. The 2nd Defendant then bought the land in the sum N3, 000,000.00 a cheque for the sum which was issued in favour the Respondent.
The witness further testified in-chief that: “The 1st transaction between the Plaintiff and 1st Defendant was in November, 5th 2007 which I also signed as a witness I know when the 2nd transaction in respect of the land took place but I was not there when the cheque was issued to the Plaintiff but I was there when the agreement was signed for the second soles, The document for the 2nd sale was signed in the night at the house of Alhaji Adamu Baba Tatu. When the 2nd document in respect of the land was signed myself, Alhaji Adamu Baba Tatu, the lawyer of the 1st Defendant were all present with the Plaintiff. After the signing the Plaintiff gave them the C of O. After the signing of the document the Plaintiff was not told to come back and collected his balance of Three Million Naira (N3,000,000.00). He did not tell me that after they pay him the balance of Three Million Naira, the Plaintiff will give me the balance of Three Hundred Thousand.” However, when cross examined the witnessed admitted that: “Only one agreement later was signed in respect of the Six Million Naira Sales.” See pages 51 – 52 lines 1 – 5 of the Records.
Alhaji Adamu Baba Tatu testified in-chief that he knew the transaction between the Respondent and 2nd Appellant (Famag – Jal Nig. Ltd), when the Respondent came to him (the witness) for assistance because of a sales transaction between him (Respondent) and the 1st Defendant but there was misunderstanding between Plaintiff and 1st Defendant in respect of the sale of land. The Respondent had told him to assist him talk to the 1st Respondent at any amount he agreed to buy it. He DW2 subsequently met the 1st Appellant and told him that he would not buy the land except the Respondent agreed to sell the land to his company Famag Jal. Nig. Ltd. The next day he called the 1st Respondent and they went together to the house of the 1st Appellant where it was agreed that the company should buy the land at the rate of N3, 000,000.00 Counsel to the Company was called and they went to Bali to inspect the land at Bali after which the Counsel informed him (the DW2) that he paid the Respondent his money.
He (DW2) was then given the document to sign as a witness and he did. The Respondent also signed the document in his (DW2’s) house. He also testified that after signing the document the Respondent was not told to come back for the balance of Three Million Naira as the amount for the sale was Three Million Naira and the Respondent was paid cash. He denied ever meeting the Respondent after signing the agreement nor did the Respondent come to him again. See pages 52 and 53 of the Records. Under cross examination the witness replied thus:
“The 1st defendant is the owner of the 2nd defendant Company. I do not know the difference between agreement and deed of assignment but in Hausa they are the same. I am aware that the Plaintiff told me that he had a transaction with the 1st Defendant in respect of the land and he was paid (N500,000.00) Five Hundred Thousand Naira but 1st Defendant said he was no more interested because of the agents.
It was Counsel that paid the Plaintiff the money. I was not there but was only told the agent in the first sales were Musa and Ali Tafida. Ali Tafida is the DW1. These agents were not involved in the soles to the 2nd defendant, I cannot tell what happened to the first agreement.”
Finally, the DW3 testified in-chief confirming the first transaction he entered into with the Respondent to buy his land for the sum of N6,000,000.00 (Six Million Naira) upon satisfactory certification that the land belongs to him and that the Respondent was to collect the balance at the month end after depositing N500,000.00 (Five Hundred Thousand Naira only). Two weeks after the transaction, he visited the Governor Danbaba Suntai and he asked a question that shocked him (the DW3) that somebody told the Governor that he the witness was fronting for the Governor to purchase a piece of land in Bali. When Yaro (Respondent) came to collect the balance he (the DW3) told the Respondent that he was not going to buy the land again because of the rumour which had gone round that he (the DW3) was going to buy the land as a front for the Governor. He did not go further with the business butt told Alhaji Yaro Garba (the Respondent to go and sell the land and bring the deposit.
The Respondent did not do so until June, 2008 about six months after he had allowed the Respondent to go and sell the land that his (DW3’s) friend Alhaji Baba Tatu (the DW2) informed him (the DW3) that Respondent went to the said DW2 as a good friend to the 1st Appellant that Respondent could not get the Five Hundred Thousand Naira as he could not sell the land. According to the DW3/1st Appellant the DW2 informed him that the Respondent had a collapsed business and had devalued the land and had sought for his assistance to look for someone to buy the devalued land. He (1st Appellant informed the DW2 that he was not interested and while he was discussing this issue with Alhaji Baba Tatu, he was there with the Chairman of the 2nd Appellant.
After Baba Tatu had come to him twice he (1st Appellant), agreed for three million naira between the Respondent and 2nd Appellant/Famag-Jal Nig. Ltd. to buy the land. There and there they instructed their lawyer to go and verify the authenticity of the Respondent’s title and get the title documents of the land after which the Respondent was paid the balance of Two Million, Five Hundred Thousand (N2,500,000.00). Upon confirming the correctness of the land and title documents they then raised a deed of assignment between the Plaintiff/Respondent and the 2nd Defendant/Appellant. He (1st Appellant) signed as a witness to the 2nd Appellant while Alhaji Baba Tatu also signed as a witness to the Respondent. The business was concluded and the Plaintiff was paid the balance of N2, 500,000.00 (Two Million Five Hundred Thousand Naira only) and Famag-Jal Nig. Ltd. is now owner of the land.
He did not hear anything after the conclusion of the transaction of 3/6/2008 nor did he hear from the Respondent again until over a year later when he saw a letter demanding the payment of the balance of Three Million Naira. Thereafter receiving the letter of demand, he instructed his lawyers to act accordingly as he is different from Famag-Jal Nig. Ltd. He denied calling on the Respondent to come and collect the balance of Three Million Naira after Exhibit 4 was executed as the Respondent never came again after its execution, to him (the Appellant).
Under cross -examination he stated thus:-
“I am the Managing Director of Famag Jal Nig. Ltd, when the first agreement was reached for purchase of the land a receipt was issued and signed by me, I am the only witness for the 2nd Defendant in exhibit 4. The letter I received from Counsel to the Plaintiff was demanding for a balance from me. The initial Five Hundred Thousand Naira for the Six Million Naira formed part of the Three Million Naira transactions.” See page 60 lines 4 -11.
Now, I must confess that from the totality of the evidence of the parties and their witnesses the entire case is shrouded in confusion such that unless same is scrutinized microscopically, justice cannot be done or seen to be done to the parties. In the first place, if we go by the evidence of the PW1 and PW2 particularly those aspects highlighted by the learned Counsel for the Appellant it could be concluded albeit erroneously that the Appellant rescinded the first transaction before later causing his company to enter into a fresh transaction with the Respondent.
However, having taken a cursory look at the totality of the relevant paragraphs of pleadings of the parties and the evidence elicited in proof of each other’s case, the law governing such transactions between the parties which have thrown up this appeal together with Judicial Authorities cited in their respective Briefs of Arguments; I am of the candid opinion and in tandem the learned Counsel for the Respondent’s position that there was only one transaction between the parties in this case which is a simple contract of sale of land between the Respondent and the 1st Appellant. This is amply demonstrated by Exhibit 1 the SALES AGREEMENT dated 5th November, 2007. That document states in unequivocal terms inter alia:
“This is to certify that I Alhaji Yaro Garba of Takum have today 5th November, 2007 sold my land situated adjacent Bali Primary Education Board (8000M & 265m) at the cost of Six Million Naira only (N6,000,000.00) to Alhaji Isa Tafida”. All the witnesses agreed that as a consideration for the land sold, the 1st Appellant deposited the initial sum of N500, 000.00 with a promise to pay the balance of N5,500,000.00 at the end of the month. But for the spurious reason advanced that Agents of the Respondent had spread rumours that the 1st Appellant was acting as a front for the Governor of Tairaba State Danbaba Suntai in the purchase off the land, the 1st Appellant refused to pay the balance and purportedly rescinded the transaction.
The learned Counsel for the Respondent rightly cited and relied on the case of Mini Lodge Limited V. Oluka Ngei (2010) ALL FWLR (pt. 506) 1806 at 1810 particularly at 1831 para. H and 1532 paragraphs A-B; where Adekeye, JSC delivering the lead Judgment of the Supreme Court upon being confronted with the scenario we have herein found ourselves, held thus:
“The evidence before the Court portrayed what could have been a simple contract of sale or transfer of property. An offer must be accepted in order to crystallize into a contract.
A contract of sale exists where there is a final and complete agreement of the parties on essential terms of the contract, namely the parties to the contract, the property to be sold, the consideration for the sale and the nature of the interest to be granted. Once there is agreement on these essential terms a contract of sale of land or property is made and concluded.
In a contract for property where part payment was paid, the law is that the contract for purchase has been concluded and is final, leaving the payment of the balance 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 an action can be maintained for specific performance”.
In the recent case of Ibekwe V. Nwosu (2012) N.N.S.C.L.R. (pt. 2) 136 at 146 paras. C-D, the concept of specific performance was judicially defined by Fabiyi, JSC; as the remedy requiring the exact performance of a contract by a party bound to fulfill it. According to him: “The doctrine of specific performance is that where monetary damages would be inadequate compensation for breach of an agreement, the contractor or vendor will be compelled to perform specifically what he has agreed to do. He can for example, he ordered to execute a specific conveyance of the land.”
From the totality of the evidence on record there is no doubt that all the basic and essential ingredients of a simple contract for the sale of land exist in the transaction between the Respondent and the 1st Appellant on the 5th of November, 2007 which crystallized into the execution of Exhibit 1. For instance all the witnesses particularly PW1, PW2, PW3 and DW1 agree that:-
1. The Respondent offered to sell his land situate at Bali Takum Road in Bali;
2. The 1st Appellant accepted to purchase the said land;
3. The purchaser/1st Appellant supplied consideration by payment or depositing (N500,000.00) Five Hundred Thousand Naira as part payment or consideration of the total purchase price of N6,000,000.00 and requested the Respondent to come back in a month’s time to collect the balance of N5,000,000.00 (Five Million Five Hundred Thousand Naira);
4. There was consensus ad idem between the parties in that the Respondent agreed to part with his property and the 1st Appellant agreed to purchase the land for the sum of N6,000,000.00 (Six Million Naira) and in fact handed over the certificate of occupancy to the 1st Appellant; and
5. There was intention to enter into legal relations and to be legally bound by the terms and conditions of the contract which was Exhibit 1 entered into in absolute terms that Alhaji Yaro Garba on the 5th of November, 2007 had sold his land to Alhaji Isa Tafida both adults of sound minds which intention crystallized into the said Exhibit 1.
The said Exhibit was signed by the parties to the contract in the presence of witnesses like Alhaji Musa Usman the PW2, PW1 Alhaji Yusuf Badamasi and Dw1, Alhaji Tafida all who signed the same and whose evidence I had copiously reproduced earlier on in this judgment. Indeed the learned trial Judge at pages 81 – 82 of the Records/Judgment approved the authority of SKA V. IJUH (2010) 4 NWLR (pt. 1184) 405 at 407 to 408 ratio 1; ably cited by Tyonongo Esq. in the lower court that: “……… the law is settled that for a contract to be binding, the following must exist, viz:
(a) An offer;
(b) Acceptance;
(c) Consideration
(d) Intention to create legal relations; and
(e) Capacity to contract;”
in concluding as I have also seen it herein that there was only one contractual transaction for the sale of the land in question which is (Exhibit 1) between the parties. Moreover the DW2 in his evidence under cross-examination admitted that he was aware of the transaction between the Respondent indeed to demonstrate the consummation of a binding contract, the 1st Appellant had admitted in both his pleadings in paragraph 3 of his Amended Statement of Defence at page 28 which avers that:
“3. The 1st Defendant admit paragraphs 6 and 7 of the Plaintiff Statement of Claim only to the extent that the Plaintiff came to his house and offered to sole his land, which he personally negotiated with him and arrived at the sum of Six Million Naira Only (6,000,000.00) but denied negotiating with anybody apart from the Plaintiff”.
At page 57 of the Records in his evidence in-chief the 1st Appellant testified also admitting that:- “On 5/11/2007 Alhaji Yaro Garba came to my house with Aliyu Tafida and Musa Usman the DW1 and PW2 in this case. They come with others along with the Plaintiff. He made an offer of a property located at Bali which I accepted to buy, subject to my verification. I made a deposit of Five Hundred Thousand Naira to him to show seriousness. The accepted offer was Six Million Naira. I agreed with him subject to satisfactory Certification that the land belongs to him and he was to collect his balance at the month end.” See page 57 lines 11 – 18 of the Records.
Although, the 1st Appellant forgot to mention that after it had been certified that the land actually belonged to the Respondent, he signed Exhibit 1 for absolute purchase of the property which he made the deposit of N500,000.00. However, when cross-examined at page 60 line 6 he admitted thus:
“When the first agreement was reached for the purchase of the land a receipt was issued and signed by me.”
From the foregoing admissions of the 1st Appellant himself as buttressed the testimonies of the PW1 – PW3 as well as those of the DW1 and DW2, and going by the authority of Mini Lodge Ltd. V. Oluka Ngei supra, the essential terms of the contract having been identified from the parties (the Respondent and the 1st Appellant), the property situate at Bali in Takum Local Government Area of Taraba State; the consideration of N500, 000.00 supplied by the 1st Appellant and the nature of interest which is absolute sale, the contract of sale was made and concluded. The breach of the agreement therefore entitled the Respondent to sue for specific performance and damages as he had done in the Court below.
It is also pertinent to note that the Respondent parted with the Certificate of Occupancy to the 1st Appellant even though the 1st Appellant testified at page 57 lines 24 – 25, that the Respondent did not give him any paper in respect of the land. If the Respondent did not give him any paper then his evidence is in conflict with that of the DW1 on the rescission of contract since the DW1 in his evidence in-Chief at page 50 lines 13 – 14 had testified that: “The 1st Defendant told the Plaintiff that he was not going to buy the land again. He gave back the Plaintiffs C of O to him and said anytime the Plaintiff gets Five Hundred Thousand Naira (N500, 000.00) paid as advance he should refund his money to him.”
We shall come to this anon. It suffices it to say that, in line with the decision of Adekeye, JSC in the Mini Lodge Ltd. V. Oluka Ngei (supra) and Ibekwe V. Nwosu (2012) N.N.S.C.L.R. (pt. 2) 136 at 146 paras. C-D, as well as SKA V. IJUH (2010) 4 NWLR (pt. 1184) 405 at 407 to 408 ratio 1; and the able submission of the learned Counsel for the Respondent, the action of the 1st Appellant in refusing to pay the balance of the purchase price on the ostensible reason that the transaction has been falsified before the Governor, amounted to a breach of the contract of sale since in the contractual terms, there was nothing secret about the deal nor was it stated that should the Governor be apprised on the transaction any of the parties had a right to rescind the outright sale. Thus I agree completely with the submission of the learned Counsel for the Respondent that on the Supreme Court authority earlier cited, since part payment had been made by the 1st Appellant the contract of sale had been concluded leaving the outstanding balance to be paid. Any failure on the part of any of the parties to fulfill his part of the bargain would be deemed non-performance and an action for specific performance can be maintained.
Now on the defence of rescission as pleaded and canvassed both in the Court below and herein, the learned Counsel had submitted that from the evidence of PW1 and PW2, the 1st Appellant had rescinded the contract and asked for the refund of the deposit. There is considerable substance in his submission in citing and relying on the case of Ebere V. Abioye (2005) 41 WRN 172 at 193 lines 10 – 25 per Ibiyeye JCA; that where a purchaser has through his own fault rescinded a contract for which he has already made part payment, the seller is under an obligation in law to return to the defaulting purchaser any money that he has already made as part payment in fulfillment of the failed contract. However, this would depend on the peculiar facts and circumstances of the particular case regard being had to the express terms of the contract. In fact, the learned Counsel did not quote the dictum of Ibiyeye, JCA (as he then was) completely but rather highlighted the portion that suited his case.
For the avoidance of doubt, the learned Emeritus Law Lord quoted with approval the commentary of the learned authors of Chitty on Contracts 24th Edition Vol. 7 under the topic of “Restitution” in paragraphs 1816 and 1817 thereof while his Lordship was considering the issues of deposit and part payment as have cropped up herein. For the avoidance of doubt and for purposes of this case, I shall also quoted in extenso what the learned Authors say at pages 866 and 868 of the thus:- “When a deposit is paid under a contract and the contract is not completed, the right to claim the return of the deposit depends on the construction of particular terms of the contract. If nothing is said about the conditions governing the deposit it will be taken accordingly to the ordinary interpretation of businessmen as a security for the completion of the contract by the depositor so that it will be forfeited to the other party if the depositor fails to perform his side of the contract. If only part of the agreed deposit has actually been paid, that part is all that can be forfeited by the depositor upon his failure to complete his obligation, the innocent party cannot sue to recover the balance of the deposit. A deposit may be recovered in the case of purchase on a condition which is not performed.”
His Lordship again quoted the authors at page 790 paragraph 1697 where they defined part payment not intended to be deposit as follows:-
“Different principles apply if there is a substantial prepayment of a purchase price which is not intended to be in the nature of deposit or earnest; in this situation the Plaintiff may still have a claim for recovery deposit the fact that the non performance of the contract was due to his own fault. Thus where a purchaser repudiated his contract to purchase goods, he was nevertheless held to be entitled to a substantial prepayment (not in the nature of deposit made by him, subject to a deduction in respect of actual damage suffered by the seller, through the breach of contract. If the Court had allowed the whole prepayment to be retained by the seller, it would have been to allow the retention of a penalty not liquidated damages.”
Taking into consideration what the learned authors had said above and the facts and circumstances of this case, that the N500,000.00 (Five Hundred Thousand Naira) was in the words of the DW3 and 1st Appellant both in his pleadings and evidence; deposited “to show seriousness. The accepted offer was Six Million Naira; “and the fact that the agreement (Exhibit 1) was silent on the condition governing the deposit, the 1st Appellant deposited the said sum as a security for the completion of the contract and where he purported to have rescinded the contract and/or breached same, he forfeited the deposit to the Respondent. See page 191 lines 16 – 45 to page 192 line 24 of the Law Report above cited.
Turning to the dictum of Ibiyeye JCA which is being touted by the learned Counsel for the Appellants, His Lordship had posited that the concept of earnest or earnest money connotes the payment of a token price of the price of goods sold or the delivery of part of such goods for purpose of a binding contract. According to him, often the contract provides for forfeiture of the money paid if the buyer defaults and that invariable such payments are comparatively infinitesimal in an assurance that the party is in earnest and good faith and that if his earnest and good faith fails, it will be forfeited. Page 546 of Black’s Law Dictionary 5th Edition refers. Then at page 193 paragraph 8-20 of the Law Report, after holding that there was no express or implied term that the part payment be forfeited in the case under consideration, His Lordship then made the remark that the learned Counsel has relied on herein that:
“The general principle is thereby to the effect that where a purchaser has through his own fault rescinded a contract for which he had already made a part payment, the seller is under an obligation at law to return to the defaulting purchaser any money that he has already paid in fulfillment of the failed contract subject, however to a cross-claim for damages or a deduction in respect of the actual damage suffered by the seller through the breach of contract. See Dies V. British and International Mining & Finance Corp, Ltd. (supra) at 244 and 745.” From the foregoing, dictum of Emeritus Ibiyeye, JCA; the authority cited by the learned Counsel for the Appellants is rather in favour of the Respondent assuming the contract was actually rescinded by the 1st Appellant.
There is this other interesting argument by the learned Counsel for the Respondent when he cited KAYDEE Ventures Ltd V. Minister of FCT (2010) 181 LRCN 69 at 93 EE and 94A; which report is not handy. However, the case is also reported in (2010) ALL FWLR (pt.519) 1079 at 1099 paras C-F; where the Supreme Court per Muhammad, JSC; enunciated the principle of law that has been reproduced by the learned Counsel for the Respondent. There is no doubt that the eminent jurist of the Supreme Court had restated that time-honoured principle of the law of contract and it is trite that as a general rule, a contract may be determined either in accordance with the contractual terms such as through performance by the promisor of the exact terms he undertook to do for example in contract of sale or contract of supply of services. Equally, a contract can be brought to an end or terminated where the promisor failed to perform through breach or where he made misrepresentation or where a subsequent agreement took place. Before the above quoted part of His Lordship’s dictum, he had earlier noted thus:-” Now, where a legally permitted contract has been concluded by parties to it, the parties become bound by the terms by and conditions provided therein. None of the parties will be permitted by law to resile from such terms and conditions except for good and genuine reasons.”
Now, what was the reason given by the Appellant in purporting to rescind the contract of outright sale of the land which the parties had concluded. It was for the spurious reason that the Agents of the Respondent spread rumours which filtered to the ears of the Governor that he the 1st Appellant was acting as a front for the Governor in the transaction which I had earlier held was not part of the terms of Exhibit 1 that should the Governor Know that Appellant was fronting for the said Governor, the contract would automatically be determined/terminated.
Out rightly, the reason given for the so called rescission is unfounded from the terms of the contract and in Law and accordingly same is therefore not genuine. The 1st Appellant by the doctrine of the specific performance ought to be compelled in law and equity to discharge his own part of the bargain.
On another score, the learned Counsel for the Appellant has submitted that the Respondent had gone into a subsequent transaction or contract with the 2nd Appellant and by voluntarily tying himself as contained in Exhibit 4 (the Deed of Assignment dated 3rd June, 2008); has expressly and/or by conduct terminated the 1st contract between him and the 1st Appellant. There is no doubt that Kaydee Ventures Ltd. V. Minister FCT (supra) had decided that a contract can be terminated where a subsequent agreement took place. Furthermore, the learned Counsel has referred us to the case Berry V. Berry (1929) 2 K.B. 316; which was cited by the learned author of Sagay Nigerian Law of Contract, 2nd edition by I.E. Sagay SAN at page 533 under the topic “Rescission of Contracts Under Seal,” where the learned author commenting on this legal principle observed that the old Common Law rule was that a contract under seal could only be rescinded by another contract (see West V. Blakeway (1041) 2 M & G 729), but that in equity, a contract under seal could be rescinded by a simple contract, whether oral or in writing. He further reasoned that since the Judicature Act, the equitable rule has prevailed, so that now a contract under seal can be rescinded by a written or oral agreement such that in the Berry V. Berry case where a husband covenanted under a deed of separation with his wife to pay her 18 pounds a month and eight years later, by a written agreement no under seal, he agreed to pay her 9 pounds a month and 30 percent of his earnings if it exceeded 350 pounds, it was held that the simple contract validly varied the parties’ obligations under the original contract under seal.
The 1st Appellant and indeed his Solicitor with the tacit connivance of the Alhaji Aliyu Tafida and Alhaji Baba Tatu capitalized on the helplessness and ignorance of the Respondent to cajole and deceive him into signing away N3,000,000.00 of the purchase price for the land which had long been agreed in Exhibit 1. The Respondent had pleaded that the said persons created the erroneous impression on him that he was merely signing Exhibit 4 for purposes of perfecting the title of the 1st Appellant in the land Registry when the Solicitor paid the Respondent an additional sum of N2, 500,000.00 to the N500, 000.00 earlier deposited by the 1st Appellant with a promise that at the month end, he would be paid the balance of Three Million Naira in full satisfaction of the Agreement in Exhibit 1.
However, when he subsequently came back for the balance at the end of the month none of the witnesses agreed to go along with the Respondent to the 1st Appellant to collect the said balance. This culminated in the letter of demand (Exhibit 2). However, the Solicitors of the 1st Appellant then wrote Exhibit 3 disclaiming liability and relying on Exhibit 4 purporting that the earlier contract had been rescinded and that the Respondent dealt with the 2nd Appellant who is a different personality (Famag – Jal Nig. Ltd) which unfortunately for the 1st Appellant (assuming such a company exists as there is no evidence to that effect); he is the alter ego.
The learned Counsel and indeed the 1st Appellant and their cohorts were only clever by half as the learned Counsel for the Respondent has taken away the wind from their sale by exposing the deceit and fraudulent nature of the transaction that threw up Exhibit 4 the so called Deed of Assignment, when he (learned Counsel for the Respondent) cited and relied upon the case of Cooperative Development Bank PLC. Vs. Ekanem (2010) ALL FWLR (pt. 511) 833 at 835 at 847 paras. E – H. per Owoade, JCA. Who admirably and succinctly put it beyond per adventure that:
“The entire law of contract is founded on the “consensus” or “will theory of contract which asserts that contractual obligations are by definition self-imposed and in terms of the function of the Courts, finds expression in the idea that the exclusive task of a Court in contract cases is to discover what the parties have agreed, and give effect to it except in cases of mistake, duress and illegality. As every contract derives its effect from the intention of the parties, that intention, as expressed or inferred, must be the ground of every decision respecting its operation and extent, and the grand object of consideration in every question with regard to its construction.”
I answer the question posed by the learned Counsel for the Respondent as to the intention of the Parties when they entered into Exhibit 1, that, they intended to be bound by the terms of that agreement and since the Respondent had fulfilled his side of the bargain following their consensus ad idem, the 1st Appellant must also perform his own part. Still on Exhibit 4, I hold the considered view that the learned Counsel for the Respondent was on very solid wicket when he referred us to section 63 of the Conveyancing Act, 1881 which is a statute of General Application.
He has rightly relied on the case of International ile Industries Nig. Ltd. V. Aderemi (1999) 8 NWLR (pt. 614) 268; where Uwaifo, JSC with approval cited Barnesly’s Conveyencing Law And Procedure (1971 Edition) at page 4; in submitting that the 1st Appellant has not discharged the burden cast on him under section 140 of the Evidence to establish that there was rescission of Exhibit 1 more so when the document relied upon is the Deed of Assignment (Exhibit 4) which he distinguished from an Agreement.
He has also rightly posited that Exhibit 4 is a document formally transferring or conveying the property sold to the 1st Appellant as per Exhibit 1 the Purchase Agreement and most importantly the 1st Appellant signed Exhibit 1 as purchaser while he signed Exhibit 4 as an “Assignee”. He has rightly posed the question as on where the sale Agreement supporting the Deed of Assignment is if the Deed amounted to a second sale as purported by the learned Counsel for the Appellants. That answer has been provided by the authorities cited and relied upon at page 7 of the Respondents Brief. For instance in International iles Industries Nig. Ltd. v. Aderemi (1999) 8 NWLR (pt. 614) 268 at 293 paragraph H to page 294 paragraphs A – B; Uwaifo, JSC; remarked in a similar situation where the parties could not distinguished between Agreement for sale of property and Deed of Assignment thus:-
“It seems to me that the landlords and the 5th Respondent have been unable to distinguish between the two stages involved in transactions of the transfer on sale of an estate in land. It is proper to bear the phenomenon in mind in order to be able to appreciate the stage in which Section 22(1) of the Land Use Act, 1978 (herein after called the Act) becomes relevant in a bargain to alienate land. The two stages are well known in Conveyancing Procedure. Parties have to agree to the terms of the sale before the property in question is conveyed. In Conveyancing Law and Procedure by Barnsely, 1973 Edition page 4, it is stated;
“A transfer of an estate in land is divisible into two distinct stages:
(i) the contract stage; ending with the formation of a binding contract for sale;
(ii) the conveyancing stage, culminating in the legal title vesting in the purchaser by means of the appropriate instrument under seal. It follows that it is only after a binding contract for sale is arrived at that the need to pursue the procedure for acquiring title will arise. That is when the obtainment of the necessary consent to alienate the property becomes an issue in order to make the alienation valid.”
In the case at hand there is no contract covering Exhibit 4 except the subsisting contract of sale in Exhibit 1. Since there is no other such contract, Exhibit 4 is either a nullity or at best, a collateral to Exhibit 1. See also the recent case of Prince Kayode Olowu V. Building Stock Ltd. (2011) ALL FWLR (pt. 560) 1335 at 1338; where Agbo, JCA re-echoed the decision in international ile Industries Ltd V. Aderemi (supra). On the whole, even though Exhibit 4 was the last to be signed by the parties, the document would lack any legal basis since there is no substratum or foundation upon which it rested or can be rested except Exhibit 1. The cases of S.S.G. V. Tunji Dosunmu Ltd. (2011) Vol. 194 LRCN 192 at 231 paras UJJ and 232 para. A; as well as Agwunedo & 7 Ors. V. Onwumere (1994) 375 at 387; are not applicable to the facts and circumstances of this case even though they may have been rightly decided on their peculiar circumstances and facts. I hold and agree in the alternative with the learned Counsel for the Respondent that Exhibit 4 must have been executed by the Appellants as a second stage of the sale transaction in Exhibit 1 as pleaded and testified to by the Respondent.
Finally, I reiterate that only one Sale transaction that exists from the totality of the evidence produced before the Court below and as appear in the Record of proceedings is that as evidenced in Exhibit 1. I therefore answer the question posed in issue Number One in the affirmative that Sale between the 1st Appellant (1st Defendant) and the Respondent was and is still valid when the Respondent was purported by the 1st Appellant to have entered into the spurious Deed of Assignment in Exhibit 4. This issue is therefore resolved against the Appellants.
ARGUMENT OF Learned Counsel FOR THE RESPONDENT ON ISSUE NUMBER TWO (2): WHETHER EXHIBIT 4 CAN BE VARIED, ADDED TO OR ALTERED BY EXTRINSIC EVIDENCE?
The learned Counsel for the Appellant on this issue had argued that the said Exhibit 4 (Deed of Assignment) cannot be varied or added to by extrinsic evidence since the parties voluntarily executed same. He referred us to the provision of Section 132 of the Evidence Act, CAP. E14, Laws of the Federation of Nigeria, 2004 and the cases of Ezemba V Ibeneme (2004) 14 NWLR (pt. 89) 67; Egharevba V. Osagie (2010) vol. 180 LRCN at 103 Paras. U – Z; Amgbareh V. Mimra (2008) Vol. 158 LRCN 325 at 330 and Oloruntoba – Oju V. Abdul-Raheem (2010) Vol. 178 LRCN 131 at 177; to submit that oral evidence cannot be admitted or approved to vary or alter or add to a term of contract which has been reduced into writing when the document itself is in existence.
Thus, in his view, the learned trial Judge was in error when he held that Exhibit 4 was only meant for the 1st Appellant to obtain consent of the Governor when there is no such evidence before the Court. Moreover, it was further submitted that the intention of the parties can only be deciphered from the transaction between the Appellants and Respondent and not from the submissions of Counsel to the Respondent as held by the Court. Address of Counsel, the learned Counsel maintained, cannot take the place of evidence, no matter how eloquent and well written. Finally, on this issue, the learned Counsel for the Appellant in respect of the contention of the learned Counsel for the Respondent in the lower Court that Exhibit 4 was meant for the Appellants to seek the consent of the Governor, asserted that it is the Vendor who should seek the consent of the Governor to sell and not the purchaser as contended by the Respondent.
ARGUMENT OF LEARNED COUNSEL FOR THE RESPONDENT ON ISSUE NUMBER 2 (TWO)
In his response to the above submissions, Tyonongo Esq. for the Respondent urged us to resolve the issue against the Appellants in that by paragraphs 8, 9, 10, 11, 12 and 13 of the Respondent’s Amended Statement of Claim, he averred to facts on the circumstances that led to his signing Exhibit 4 and the PW3 testified in respect of these facts at page 43 lines 14 – 27 and page 44 lines 1 – 8 of the Records which evidence he reproduced at page 8 paragraph 4.00 of the Respondent’s Brief of Argument. From the above evidence the learned Counsel submitted that the purport of Exhibit 4 is clearly explained both in the pleading and the Respondents oral evidence before the trial Court. Referring us to the case of Asman Man & Mech. Co. Ltd. V. Spring Bank PLC. (2012) ALL FWLR (pt. 613) 1864 at 1869, he submitted that for the Court below to understand the purport of the transaction under consideration in this Appeal and the circumstances under which Exhibit 4 was made by the parties, oral evidence needed to be admitted as contained in the Record of proceedings in order to do justice to the case.
This is more so, in his view, that the 1st Appellant signed Exhibit 1 as “the Purchaser” and signed Exhibit 4 as “the Assignee” and at the same time as witness for the Assignee having admitted under cross-examination while testifying as DW3 as he did in page 50 lines 4 and 7. He maintained that DW1 also admitted under cross-examination in page 52 lines 4 – 7 of the Record and DW2 at page 53 line 27 also admitted that only one Agreement was signed in respect of the transaction of N6,000,000.00 (Six Million Naira) and that the 1st Appellant is the owner of the 2nd Appellant/company. He then contended that consequent upon the above analysed evidence of the parties in this matter, it is proper, justifiable and judicious that resort be made to the pleadings and evidence produced before the Court in arriving at a decision in this Appeal by us as amply permitted by Law.
RESOLUTION OF ISSUE NUMBER (2) TWO
Following the resolution of issue Number One in favour of the Respondent and against the Appellant, I must state firstly in the resolution of this issue that ordinarily the position of the law as stated by the learned Counsel for the Appellant that Exhibit 4 (the Deed of Assignment) voluntarily executed by the parties cannot be altered, varied or added to by extrinsic evidence is unassailable. This is the purport of Section 132 of the Evidence Act CAP. E14, 2004 (now Section 128(1) of the Evidence Act 2011) which provides that:
“128(1) when any judgment of any Court or any other judicial or official proceedings, or any contract, or any grant or other disposition of property has been reduced to the form of a document or series of documents, no evidence may be given of such judgment or proceedings or of the terms of such contract, grant or disposition of property except the document itself, or secondary evidence of its contents in cases in which secondary evidence is admissible under this Act; nor may the contents of any such document be contradicted, altered added to or varied by oral evidence:
Provided that any of the following matters may be proved-
(a) fraud, intimidation, illegality; want of due execution; the fact that it is wrongly dated; existence or want or failure, of consideration; mistake in fact or law, want of capacity in any contracting party, or the capacity in which a contracting party acted when it is not inconsistent with the terms of the contract; or any other matter which, if proved, would produce any effect upon the validity of any document, of any part of it, or which would entitle any person to judgment, decree, or order relation to it; …..” See provisos (b) – (e) and subsections (2) and (3) of the section.
This Section of the Evidence Act as rightly submitted was given judicial assent and interpretation in the case of Ezemba V. Ibeneme (2004) 14 NWLR (pt. 894) 67, where it was held that: “it is trite law that once an agreement has been committed into writing and executed by the parties, it is binding on them and you cannot use parole evidence to alter its terms.” Although we had earlier held that Exhibit 4 is not an Agreement properly so called, since it purports to grant or dispose of the property in issue, the section ordinarily would have covered the exclusion of oral evidence to alter, add or vary it. See Dawodu V. Mojolagbe (2001) 3 NWLR (pt.703) 234, 239, Badaru V. SCB Nig. Ltd. (2003) 10 NWLR (pt. 827) 91 – 101 Awolaja V. Seatrade G. B. V. (2002) 4 NWLR (pt. 758) 520 at 534; where Ayoola, JSC construed the clause in section 132 of the Evidence Act “has been reduced to the form of a document or series of documents” to have enacted the parole evidence rule.
Thus, where a party to a suit succeeds in proving that a document has been duly executed, all things being equal and duly considered, that document will authoritatively influence the Court in coming to a just determination of the case and accordingly parole evidence of the contents of the document is excluded although the weight to be attached to the document is another matter altogether. This position of the law fell for consideration, in the case of Dawodu V. Majolagbe (supra) and it was held that once there is a document evidencing the sale of landed property, oral evidence of the sale will be excluded and the question of what land was sold has to be resolved by reference to the document tendered. See further Ogbodu V. Quality Finance Ltd. (2003) 6 NWLR (pt 815) 147, 162; Kabo Air Ltd. V. INCO Bev. Ltd. (2003) 6 NWLR (pt.816) 323 and Kwara Hotels Ltd. V. Ishola (2002) 9 NWLR (pt. 773) 604.
There is no doubt that the Supreme Court had decided in Egharevba V. Osagie (2010) 180 LRCN 103; and it is trite on authorities too numerous to mention that because of its permanence and durability, documentary evidence is the best evidence and the best proof of the contents of that document such that oral evidence should not be allowed to discredit or contradict the contents thereof except where fraud is pleaded. Amgbareh V. Mimra (2008) Vol. 158 LRCN 325 at 330, has also buttressed the position of the law as earlier stated on the inadmissibility of oral evidence to vary, add or alter the contents of a document except the document itself. However, with the greatest respect, the self same section 132 or 128 of the Evidence Act, by the proviso in subsections (1) (a) – (e) and subsections (2) and (3) has made room for exceptions to the general rule and they permit parole or extrinsic evidence to be admitted not withstanding that a transaction like Exhibit 4 has been reduced into writing.
For instance, the learned Counsel for the Appellant has identified fraud as one of the reasons as has been held in one the cases he cited. Am of the candid view, that even though learned Counsel for the Appellant has insisted that fraud was not specifically pleaded, the Respondent pleaded in paragraph 9 of the Amended Statement of Claim that:
“9 The plaintiff state further that the 1st defendant had requested Baba Tatu to invite him from Takum to Jalingo and Baba Tatu called him from Takum on phone to come and collect the sum of N2, 500,000.00 to make up half of the purchase price to enable the parties draw up a deed if assignment which the Defendants will use to effect change of title at the Land Registry and obtain Governor’s consent”; and in paragraph 10 thereof that the 1st Defendant and his Solicitor informed him that he would be paid the sum of N2,500,000.00 upon signing the Deed of assignment to enable them use it to apply for consent of Governor for assignment and the balance shall be paid on a later date but subsequently the 1st Appellant purportedly decided that the name of FAMAG-JAL NIG. LTD. would now be used to sign the Deed; can fraud deceit or misrepresentation not be inferred.
Again, when the PW3 testified that when he came back for N3,000,000.00 balance the 1st Appellant and his Counsel denied any indebtedness and that Ali Tafida and Baba Tatu refused to go with him to demand for the balance, can the Court not infer deceit from their conduct? Moreover, can a reasonable person not infer fraud when the DW1 testified that the document was signed in the night and the PW1 did not even know that Baba Tatu signed as his witness until a copy of the Deed attached to the Reply to the letter of Demand from the learned Counsel to the Appellant was shown to the Respondent? Can we also say that from the surrounding circumstances of the signing of the Deed of Assignment by the Respondent, the procurement of his signature and the contents of the deed (that is that the additional N2,500,000.00) was in total and final satisfaction of the purchase price, and the legal implication of the Deed he signed, were explained to his understanding? I think not.
The learned Counsel for the Appellant had touted the case of Egharevba V. Osagie (supra) and Oloruntoba -Oju V. Abdul-Raheem (2010) Vol. 178 LRCN 131 at 177 paras. EE; on the fact that fraud was not pleaded and that Counsel’s address no matter how eloquent and brilliant cannot take the place of pleadings.
I have highlighted the paragraphs of the Respondent’s Amended Statement of Claim from which it can be inferred that he pleaded fraud, deceit, misrepresentation and the fact that he did not sign the Deed with the intention of parting with the balance of N3, 000,000.00. At pages 331 – 332 of the Civil Procedure in Nigeria 2nd Edition by Fidelis Nwadialo, SAN of blessed memory under the caption “Certain Facts that Should Be Specifically Pleaded” with the subtitle “(ii) Fraud”, the learned author after citing the dictum of Obaseki JSC in David Fabunmi V. Abigail A – Agbe (1985) 5 S.C 28 at 76, Usen Vs. B. W. A. Ltd. (1965) ALL NLR 244 at 247 U.A.C. Co. Ltd. Vs. J. E. Taylor (1935) 2 WACA 70 at 71 Olufumise V. Falana (1990) 3 NWLR at 16; on the need for a party to plead allegations of fraud with particulars before he can lead evidence thereof and the for fraud to be strictly proved, nevertheless reasoned thus:-
“Fraud, which is defined as “something dishonest and morally wrong” does not connote a specific vice but includes any misconduct to which this definition applies. In pleading, it is frequently unnecessary to use the word, but to set out the misconduct itself. For example, where the charge of fraud is based on misrepresentation, the form of pleading used is something like:
“an allegation that the Defendant made to the Plaintiff representations on which he intended the Plaintiff to act, which representations were untrue and known to the Defendant to he untrue,” See Olufunmise V. Falana (supra).
In the instant case, the averments of the Respondent in paragraphs 9, 10, 12, 13 and 14 of the Amended Statement of Claim all smack of misrepresentation and deceit and he can lead evidence in proof thereof. Accordingly, apart from the cases above cited, in Dosunmu V. Dada (2002) 13 NWLR (pt. 283) 1, 3, 32, Akinboni V. Akinboni (2002) 5 NWLR (pt. 761) 564 at 580 and Okoya V. Santili (1994) 4 SCNJ (pt. II) 333 at 353, it was variously held that fraud is a vitiating element in instruments. Accordingly the Courts will always be inclined to allow evidence of fraud in order to prove that a document is a nullity. Thus the procurement of one’s signature as in this case where the Respondent was cajoled to sign the Deed of Assignment by false representation that it was going to be used for the purpose of changing ownership of the property in question by the 1st Appellant with the Ministry of Lands or to seek the consent of the Governor for the transfer of the property to the Appellants, which is fundamentally different from his (Respondent’s) contemplation that the purchase price of the land the subject of Exhibit 1, has been reduced to hall is a ground for nullifying such a document. See generally C. C. Nweze, LLM; PhD in his “Contentious issues And Responses in Contemporary Evidence Law In Nigeria” Vol. One at pages 335 – 337.
Learned Counsel for the Respondent has correctly referred us to paragraphs 8, 9, 10, 11, 12 and 13 of the Respondent’s Amended Statement of Claim which I had earlier highlighted as having averred to facts and the circumstances leading to the Respondent’s signing of Exhibit 4. He has also aptly referred to the evidence of the Respondent/PW3 at page 43 lines 14 – 27 and page 44 lines 1 – 8 (see also page 46 of the Records particularly lines 9 – 11, 12 to 20). I therefore I agree with him that the purport of Exhibit 4 has clearly been explained both in the Respondent’s pleadings and his evidence. I am also well guided by case of Asuman Man & Mech. Co. Ltd V. Spring Bank PLC (2012) ALL FWLR (pt. 613) 1864 at 1859; which explains the circumstances under which parole evidence can be adduced in expatiation of documentary evidence as in this case where Appellant signed the Agreement (Exhibit 1) as a purchaser and then Exhibit 4 as Assignee and Witness for the Assignee at the same time.
It was therefore necessary for the Court to decipher the purport of the transaction and the circumstances warranting the 1st Appellant to so act in for justice to be done. This is more so when the 1st Appellant admitted that he is the Managing Director of the 2nd Defendant/Appellant and further admitted he was the only witness for the 2nd Appellant in Exhibit 4. Again the DW1 and DW2 admitted that only one sales Agreement was signed in respect of the Six Million Naira which was the agreed price for the land in question apart from the DW2 also admitting that the DW3/1st Appellant is the owner of the 2nd Defendant/Appellant Company.
I therefore answer the question posed on issue Number (2) Two in the affirmative and resolve the issue also against the Appellant.
ISSUE NUMBER 3 (THREE): WHETHER THE PARTIES ARE BOUND BY THE DEED OF ASSIGNMENT (EXHIBIT 4) VOLUNTARILY SIGNED BY THEM?”
On this issue, the learned Counsel for the Appellants posited that 2nd Appellant is a distinct and separate legal personality different from 1st Appellant and has the capacity to enter into a contract of its own and the trial Court was therefore in error to have held as he did in page 83 line 26 to 84 lines 1 – 3 of the Records that there was no justice in the 1st Appellant’s recession of the earlier agreement with the Respondent only to turn around to present a Deed of Assignment to be signed by the Respondent and 1st Appellant in favour of the 2nd Appellant which act he declared unconscionable as there was no pleading and evidence of the Respondent and witnesses as well as there being no where such an allegation was made.
He reiterated as he did earlier on issue Number 2 (TWO) that the Respondent throughout his case did not plead fraud or misrepresentation and relying on the authorities of Omonrhirhi V. Enatevwere (1989) 1 NWLR (pt. 95) 115, U.A.C. V. Taylor (1934 – 36) 2 WACA 67 at 70 -71 and Kaydee Ventures Ltd. V. Minister of FCT (supra); he further contended that where there is no alleged fraud or misrepresentation by any of the Appellants and with the agreement between the 2nd Appellant and the Respondent, the Respondent cannot complain. Reference was further made to Section 37 of the Companies and Allied Matters Act, 2004 on the concept of distinct legal personality of the 2nd Appellant from that of the 1st Appellant in submitting further that Exhibit 4 cannot be a continuation of Exhibit 1 which was entered into by different persons recognized by law. Moreover, he maintained, Exhibit 4 does not contemplate any past or future extrinsic evidence more so, when Exhibit 4 was made Six (6) months after Exhibit 1 and it is in evidence that the Respondent by his conduct had abandoned the alleged sale in Exhibit 1 (otherwise he would have enforced it by way of specific performance) especially by voluntarily executing Exhibit 4. According to learned Counsel for the Appellants, the 1st Appellant (1st Defendant in the trial Court) having had a failed contract does not by itself bar the 2nd Appellant (2nd Defendant in the lower Court) from entering into contract with the Respondent (Plaintiff).
On the whole, he re-emphasized that the Respondent having voluntarily entered into Exhibit 4 he is bound by it and Exhibit 4 cannot be varied or altered by extrinsic evidence and the terms contained therein should be given its plain and literal meaning/interpretation. Section 132 of the Evidence Act CAP. E14 LFN and Larmie V. DPMS (2006) Vol. 3 MJSC 20 at 37 para. E, per Onnoghen, JSC; were cited and relied upon in urging us to allow the Appeal, set aside the judgment of the trial Court and dismiss the claim of the Respondent with costs.
ARGUMENTS OF THE LEARNED COUNSEL FOR THE RESPONDENT ON ISSUE
In his reply to the above submissions of the learned Counsel for the Appellant Mr. M. l. Tyonongo Esq., for the Respondent referred us once more to paragraphs 9, 10, 11, 12, and 13 of the Amended Statement Claim and the Respondent’s evidence at page 43 lines 14-27 of the Records on the circumstances under which he was made to sign Exhibit 4. He maintained that a Deed of Assignment cannot in law take the place of a contact Agreement as the two are legally not the same both in character and purpose; it is only legal to hold that the Deed of Assignment (Exhibit 4, in this case is a continuation of the sale transaction contained in Exhibit 1 and not otherwise. According to him, this is because each of the Exhibits served different purposes in the purchase of landed property.
He re-posed the question as to whether if, as contended by the Appellants, Exhibit 1 is the first sale transaction of the land in issue, there is a sale Agreement to support the Deed of Assignment Exhibit 4 said to be the second transaction, which question he answered in the negative. Accordingly it was posited on the authorities of Daimler Co. Ltd. V. Continental Tyre & Rubber Co. Ltd. (1916) 2 A.C. 307; per Lord Parker at page 338; and Jones V. Lipman (1962) 1 ALL E.R.442 that it is the general rule that only a company who entered into contract can sue and be sued on the contract and a member cannot do so as he is not entitled to the benefit of the contract. However, in this case, he has argued, no contract was entered by the company but the 1st Appellant who merely used the name of his supposed company in the Deed of Assignment with the intention of evading the legal obligations he acquired in Exhibit 1 and this Court can therefore disregard the separate legal personality of the company (if any) used by the 1st Appellant for purposes of evading his legal obligation’s.
Above all, the learned Counsel for the Respondent submitted that the 1st Appellant has not shown that the 2nd Appellant is a registered company capable of acquiring legal personality in law as the law by the provisions of section 36(6) of the Companies and Allied Matters Act 1990 (now CAP. C.21, Laws of the Federation of Nigeria, 2004) is that proof of registration of a company is by the production of the Certificate of Incorporation which Certificate has not been produced by the Appellants in this case. Consequently, we were urged to hold that the sale transaction in Exhibit 1 and the Deed of Assignment in Exhibit 4 constitute a single transaction from the 1st Appellant in person without any other person involved and resolve the issue against the Appellants.
RESOLUTION OF ISSUE NUMBER 3 (THREE)
In resolving this issue I must state without any equivocation that the portion of the learned trial Judge’s finding or remark that was quoted by learned Counsel to the Appellants in his introductory submission in paragraph 6.1, of the Respondent’s Brief, is unassailable. I adopt same as mine and re-echo the learned trial Judge’s remark that there is no justice in the 1st Appellant’s action in purportedly rescinding the earlier Agreement in Exhibit 1 only to turn around to present a Deed of Assignment to be signed by the Plaintiff and himself in favour of his Company for a lesser consideration. The 1st Appellant’s act is not only fraudulent, misguided and illegal but has caused the Respondent considerable financial embarrassment damage in terms of his business and it is palpably unconscionable. There is no truth in the learned Counsel for the Appellant’s submission that throughout the pleading and evidence of the Respondent and his witnesses there is no where such allegation was made and I only have to refer the learned Counsel to paragraphs 9 – 20 and 22 – 27 of the Respondent’s Amended Statement of Claim and the entire gamut of the Respondent’s testimony as well as those of his witnesses and the DW1 and DW2.
On the submission that no allegation of fraud was made and the case of Omorhirhi V. Enatevwere (1989) 1 NWLR (pt.95) 115; which was cited in support of that submission, I adopt the position I had earlier taken on issue Number Two. I reiterated that the Respondent pleaded facts in his Amended Statement of claim from which fraud, mistake of fact and misrepresentation can be inferred and amply supported those facts with uncontroverted evidence whereas the Appellant was not misled nor did he seek for further particulars at the trial Court. In fact the Court below at page 83 lines 13 – 25 after holding that the contract of 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, graciously admonished the learned Counsel for the Appellants, that he should have advised his client on the above position of the law rather than goad the 1st Appellant into engaging in what they did by purporting to rescind a contract that the 1st Appellant voluntarily entered into and purported to enter into a Deed of Assignment in favour of his company.
As I said elsewhere, the law is trite on a plethora of authorities that parties are bound by the conditions and terms of a contract the voluntarily entered into see Northern Assurance Co. Ltd. V. Wuraola (1969) NSCC 22; Union Bank of Nig. Ltd. V. Ozigi (1991) 12 NWLR (pt. 176) 677, and Nika Fishing Co. Ltd. V. Lavina Corporation (2008) 16 NWLR (pt. 1114) 509 at 542 para. F. In Idoniboye Obu V. NNPC (2003) 4 MJSC 131 at 168 paras. F-G, per Tobi, JSC; emphasizing on the bindingness of contractual terms of parties posited thus: “A party who has opened his heart, mind and eyes to enter into on agreement is clearly bound by the terms of the agreement and he cannot seek for better terms midstream or when the agreement is a subject of litigation, when things are no longer at ease. Although a party may seek for better terms, the Court is bound by the original terms of the agreement and will interpret them in the interest of justice.”
It was therefore inequitable for the Appellant to purport to abandon a contract he entered into in absolute terms only to use the name of a so-called company to vary the terms in a purported Deed of Assignment. The Court below having found out that the Respondent proved his case against the Appellant rightly gave Judgment in favour of the Respondent. See per Tobi, JSC; Nika Fishing Co. Ltd. V. Lavina Corporation (2008) 16 NWLR (pt. 1114) 509 at 543 paras. C-D; Nimanteks Associates V. Marco Construction Co. Ltd. (1991) 2 NWLR (pt. 174) at 411 and African Re-insurance Corporation V. Fantaye (1986) 1 NWLR (pt. 14) 133.
The above notwithstanding, the basic position law is nevertheless settled as the learned Counsel for the Appellant had argued, that the 2nd Appellant (assuming it was ever incorporated, which evidence is not before the Court), ought to be a distinct personality from the 1st Appellant who is its purported owner, by virtue of Section 37 of the Companies and Allied Matters Act CAP 20, Vol. 3, Laws of the Federation of Nigeria, 2004. That Section provides that from the date of incorporation mentioned in the Certificate of incorporation, all the subscribers to the memorandum of Association together with those who shall from time to time become members of the company shall become a body corporate capable thenceforth to exercise all the powers and functions of an incorporated company, including the power to hold land, and having perpetual succession and a common seal, but with such liability on the part of members to contribute to the assets of the company in the event of being wound up as mentioned in the Act. See Foss V. Harbottle (1843) 67 E. R. 189; Parke V. Daily News Ltd. (1952) Ch. 927; Birch V. Sullivan (1957) 1 W.L.R. 1247; Pulbrook V. Richmond Consolidated Mining Co. (1978) 9 Ch. 610; Edwards V. Halliwell (1950) 2 ALL E. R. 1064 at 1066 per Jenkins, L. J. and Engr. Yalaju-Amye V. Associated Registered Engineering Contractors Ltd. & Ors (1990) 6 S.C.N.J 149 at 167 – 168 and 186; per Karibi-Whyte and Nnaemeka-Agu, JJSC.
However, we have held that only one Agreement exists between the Respondent and the 1st Appellant because the Deed of Conveyance is not backed up by any Agreement. Besides, the Respondent had no intention to enter into such legal relationship that would deprive him of his N3, 000,000.00 Three Million following the terms of Exhibit 1. It does not matter whether Exhibit 4 was made after six months from Exhibit 1 which absolutely bound parties the breach of which shall lead for an order of specific performance as had earlier been held.
With the greatest respect, the contract did not fail and there was therefore a bar to the 2nd Appellant to enter into any spurious contract. On the doctrine on specific performance it was held in Olowu V. Lion Building Stock Ltd. (2011) ALL FWLR (pt. 560) 1336 per Agbo JCA; relying on the authorities of I.T.I. V. Aderemi (19991 6 S.C. 1, Help (Nig.) Ltd. V. Silver Anchor (Nig.) Ltd. (2006) ALL FWLR (pt. 311) 1833; that in cases where there is a contract for sale of land the Court is always inclined to grant specific performance because the been sold may have a peculiar value or significance. Moreover, to sue for specific performance is to assume that a contract is still subsisting and therefore to insist on its performance since the Plaintiff would not want the contract repudiated unless for any reason the Court was unable to assist him enforce specific performance; in which case he may fall back on the remedy of damages at common law. See further Ibekwe V. Nwosu (supra) at 144; Ughutevbe V. Shonowo (2004) 16 NWLR (pt. 899) 300; Kotoye V. Saraki (2004) 7 NWLR (pt. 356) 414 at 443 and 444.Therefore, the authority of Larmie V. DPMS (2006) 3 MJSC 20 at 37 para. E; per Onnoghen is cited out of con and therefore does not avail the Appellant. From all indications, I agree with the submissions of the learned Counsel for the Respondent on the authorities of Daimler Co. Ltd. Vs. Continental Tyre & Rubber Co. Ltd. (1916) 2 A.C. 307; per Lord Parker and Jones V. Lipman (1962) 1 ALL E.R. 442; that in this case there is no contract between the Company and the Respondent but Exhibit 1, was entered into by the Respondent and 1st Appellant and the 1st Appellant merely used the 2nd Appellant as a decoy to avoid the legal obligations of a contract he voluntarily entered into in Exhibit 1. See the Larmie Vs. D.P.M. Ltd. (supra) which rather applies against the 1st Appellant.
Turning to the point on the use by owners or Directors of Companies, the Supreme Court has deprecated the practice of using companies for unwholesome practices as the 1st Appellant has done herein. Speaking specifically on the theory of corporate personality, in NBCI V. Integrated Gas Nig. Ltd. (1999) 8 NWLR (pt. 613) 119 at 129; it was held that a company must be accorded its corporate status of a separate entity from the biological persons that run it, the consequence of which is to draw a veil of incorporation over it and one is not ordinarily entitled to go behind to lift the veil. However, there are many circumstances under which the veil of incorporation can be pierced or lifted in order ascertain the motives, or opinions of persons working for and inside the separate personality. One of the circumstances under which the corporate veil can lifted is where for instance there is a complaint of improper or fraudulent conduct of the company such that the canopy of the legal entity is used to defeat public interest or convenience or justify a wrong or to engage in reckless trading and such activities that are tainted with illegality as in this case. See Public Finance Securities Ltd. V. Jefia (1998) 3 NWLR (pt. 543) 602; A.C. B. V. Apugo (1995) 6 NWLR (pt. 399) 65.
In this case the 1st Appellant is hiding under the theory of incorporation or corporate veil/personality to perpetrate and facilitate the evasion of his legal obligations to Respondent and accordingly the corporate veil shall be cracked so as to look at the personalities behind the 2nd Appellant which has already been revealed by the 1st Appellant and his witnesses. The 1st Appellant who entered into Exhibit 1 with the Respondent cannot now claim that he is not bound or liable to the contract since he was the alter ego of the 2nd Appellant. See Gilford Motors Co. Ltd. V. Horne (1933) Ch. 935; Re Bugle Press Ltd. (1941) Ch. 270 and Jones V. Limpman (1962) 1 WLR 822; where the veil of incorporation was lifted because a vendor of land sought to evade specific performance of the contract of sale by conveying the land to a company which he formed. See further Nika Fishing Co. Ltd. V. Lavina Corporation (2008) 16 NWLR (pt. 1114) 509 at 543 paras. C-D; Nimanteks Associates V. Marco Construction Co. Ltd. (1991) 2 NWLR (pt. 174) at 411 and African Re-insurance Corporation V. Fantaye (1986) 1 NWLR (pt. 14) 133.
Before rounding up on this vexed concept of legal personality, as canvassed by the learned Counsel for the Appellants, may I draw our attention to the recent Supreme Court case of Alade V. Alic (Nig.) Ltd. (2010) 19 NWLR (pt. 1226) 111; particularly the dicta of their Lordships Onnoghen, Muntaka – Coomassie, Suleiman Galadima and Rhodes-Vivour, JJSC. commenting on this legal concept, of corporate personality, His Lordship, Onnoghen, JSC; posited at page 130 of the Report in line with decided authorities like FDB Financial Services Ltd. V. Adesola (2002) 8 NWLR (pt. 668) 170; and Aderemi V. LAN & Baker (Nig.) Ltd. (2000) 7 NWLR (pt. 663) 33; thus: “One is therefore generally not entitled to go behind or lift this veil” (veil of incorporation ), However, since a statute will not be allowed to be used for fraud it is a quest to ovoid the normal consequences of the statute which will result in grave injustice that the Coutts as occasion demands have to look behind or pierce the corporation veil”.
For my noble Lord Muntaka-Coomassie, JSC; he was even more vehement in condemning the like attitude or line of argument of the learned Counsel for the Appellants in this case when he purports to rely on Section 37 of the Companies and Allied Matters Act, CAP. C. 20, LFN 2004; to deprive the Respondent of the balance of the purchase price for the land the subject matter of the contract which the Appellant entered into with the Respondent in Exhibit 1, inter alia:
“It must be stated unequivocally that this Court, as the last Court of the land will not allow a party to use his company as a cover to dupe, cheat and or defraud an innocent citizen who entered into lawful contract with the company, only to be confronted with the defence of the company’s legal entity as distinct from its directors. Most companies in this country are owned and managed solely by an individual, while registering the members of his family as share holders. Such companies are nothing more than one-man business. Thence, the tendency is there to enter into contract in such company name and later turn around to claim that he was not a party to the agreement since the company is a legal entity.” Page 142 paras. C-E). Although the reverse is the case herein, this admonition is timely and applicable to the facts of this case where the 1st Appellant attempted to hide under the canopy of corporate personality of the 2nd Appellant to dupe the innocent Respondent.
Learned Counsel for the Respondent has referred us to section 36(6) of the Companies and Allied Matters Act, to submit that the law is that proof of registration of a company is by the production of certificate of incorporation which the Appellants have not produced before the Court to prove legal personality of the 2nd Appellant and accordingly we should hold that the sale transaction in Exhibit 1 and the Deed of Assignment in Exhibit 4 constitute a single transaction with the 1st Appellant without any other person involved.
We were finally urged to resolve the issue against the Appellants. Section 36(6) of the Companies and Allied Matters Act provides that:
“The Certificate of incorporation shall be prima facie evidence that all the requirements of the Act in respect of registration and of matters precedent and incidental to it have been complied with and that the Association is a company authorized to be registered and duly registered under this Act.”
As was held earlier, there is no such Certificate of Incorporation in respect of the 2nd Defendant and the presumption is that it is not a company duly registered under Section 36(1) of the Act with the authority to exercise the powers and enjoy the rights stipulated in Section 37 of the Act. Accordingly, the 2nd Appellant has no capacity to enter into any contract, assuming there was a second contract apart from Exhibit 1, which is not the case herein.
Finally, let me reiterate what I said earlier on the Claim for Specific performance, that following the entry into Exhibit 1, all the incidents of a contract for the sale of the land in question exist and the breach by the 1st Appellant shall entitle the Respondent to an order of specific performance against the 1st Appellant as the Respondent is not bound by Exhibit 4 which is tainted with fraud, misrepresentation; deceit and illegality. Assuming he is to be bound at all it shall be taken as evidence of payment of half of the purchase price of 6,000,000.00 (Six Million Naira) only; otherwise, an authentic Deed of Conveyance or Assignment shall be drafted to reflect the true position of the transaction between the Respondent and the 1st Appellant as in Exhibit 1. On the whole, I shall therefore resolve issue Number (3) again against the Appellant. This appeal therefore lacks merit is accordingly dismissed in its entirety with N50,000.00 costs in favour of the Respondent. The Judgment of Hon. Justice Nuhu S. Adi delivered on the 26th July, 2011 at High Court of Justice Jalingo Division, which granted the entire Respondent’s Reliefs in the Court below, is hereby affirmed in all ramifications.
SOTONYE DENTON WEST, J.C.A.: I agree.
JUMMAI HANNATU SANKEY, J.C.A.: I have had the benefit of reading of reading in draft, the lead Judgment of my learned brother, Agube, J.C.A. just delivered. I agree with his reasoning and conclusion that the Appeal is without merit and should be dismissed. The Appeal is consequently dismissed with costs as assessed and fixed in the said lead Judgment. I abide by other consequential orders made. Appeal dismissed.
Appearances
A. Umar Esq.For Appellant
AND
M. I. TyonongoFor Respondent
