ALHAJI MUKTAR AHMED MOHAMMED v. MOUKTAR MOHAMMED & ANOR
(2011)LCN/4949(CA)
In The Court of Appeal of Nigeria
On Friday, the 2nd day of December, 2011
CA/L/172A/08
RATIO
AGREEMENT TO ASSIGN: LEGAL SIGNIFICANCE OF AN AGREEMENT TO ASSIGN
Let me address the issue of the legal significance of Exhibit MM2 first. It is obvious from the contents of Exhibit MM2 particularly paragraphs 3 and 4 thereof that the agreement is merely a formalization of the proposed intention of the 1st and 2nd Respondents to devise title in respect of their respective landed property to each other, and not an instrument devising any title to either party. It has no more legal significance than an agreement to purchase land which is different from a conveyance or a deed of assignment. The title of the document itself says it all, to wit that it is an “Agreement to Assign” NOT a “Deed of Assignment”. In the interpretation of a written agreement, the court must confine itself to the plain words used therein. See Friday Abalogu v. The Shell Petroleum Dev. Co. of Nig. Ltd (2003) 5 SCNJ 262. Paragraphs 3 and 4 of the agreement clearly show the intention of each proposed assignor to pass legal title in the property so indicated to the proposed assignee. Exhibit MM2 is merely a registrable and registered instrument which can be tendered to prove the terms of the oral agreement between the parties or as a receipt to prove payment and equitable interest since one of the executors was in possession. See Iyiola Ogunjumo & Ors v. Muritala Ademolu & Ors (1995) 4 SCNJ 45; Adetutu Adesanya v. Alhaji S. D. Aderounmu & Ors (2000) 6 SCNJ 242. PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.
IDENTITY OF LAND: WHEN DOES THE DUTY OF A CLAIMANT TO PROVE CLEARLY AND UNEQUIVOCALLY THE PRECISE AREA TO WHICH HIS CLAIM RELATES ARISE
…there is no doubt that it is the duty of a claimant to prove clearly and unequivocally the precise area to which his claim relates. However, it is trite law that this duty does not arise if the Defendant does not dispute the identity of the property or location of the property in dispute in his statement of defence. See Alimi Akanbi Dada v. Chief Jonathan Dosunmu (2006) 9 SCNJ 31. The Defendant must specifically make it an issue in his pleadings by disputing the area or location or features described by the claimant. See Eng. Bayo Akinterinwa v. Cornelius Oladunloye (2000) 4 SCNJ 149, Akpan & Ors v. Umoh & Ors (1999) 7 SCNJ 154. See Alhaji Raufu Gbadamosi v. Olaitan Dairo (2007) 1 SCNJ 444. PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.
INTERPRETATION OF DOCUMENTS: POSITION OF THE LAW ON HOW DOCUMENTS ARE TO BE INTERPRETED
The question of the interpretation of a document is a matter of law. One of the canons of interpretation is that words used in a document must be given effect and that no word must be added or subtracted or ignored. In fact the whole document must be considered in totality and not in isolation so as to ascertain the intention of the parties. See Afrotech Services Nig. Ltd v. M.A & Sons Ltd & Anor (2002) 12 SCNJ 298, Unilife Development Co. v. Mr. Kolu Adeshigbin & Ors (2001) 2 SCNJ 116; Chief S. O. Agbareli & Anor v. Dr. Anthony Minira & Ors (2008) 1 SCNJ 409; Adetoun Oladeji Nig. Ltd v. Nigerian Breweries Plc (2007) 1 SCNJ 375. PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.
BARTER: WHAT IS BARTER
In any event, ‘Barter’ is defined in the New Webster’s Dictionary of English Language, International Edition as “to exchange (goods of services against something else) without using money”. PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.
FRAUDULENT MISREPRESENTATION: THE REMEDY OPEN TO A CLAIMANT AS REGARDS ALLEGATION OF FRAUDULENT MISREPRESENTATION
As regards the allegation of fraudulent misrepresentation, let me restate the position of the law as I understand it. There are various specie of misrepresentation. It is important to distinguish between the different types of misrepresentation because they give rise to different remedies. Fraudulent misrepresentation can entitle the represented to rescind the contract while other types of misrepresentation merely give rise to an action for damages. PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.
OBLIGATIONS OF PARTIES TO A CONTRACT: THE TYPES OF OBLIGATION WHICH COULD BE IMPOSED BY THE COURTS UPON CONTRACTING PARTIES WITH RESPECT TO DISCLOSING INFORMATION DURING THE PROCESS OF CONTRACTUAL NEGOTIATION
In terms of disclosing information during the process of contractual negotiation, there are essentially two types of obligation which could be imposed by the courts upon contracting parties. The first is to disclose all known material facts to the other contracting party. The second is a duty to refrain from making active misrepresentations; that is to say, a contracting party is not compelled to disclose all information, but once he does disclose, he must do so truthfully. PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.
MISREPRESENTATION: WHAT A MISREPRESENTATION ENTAILS
The law has always been that a misrepresentation must be an unambiguous false statement of existing fact. A statement of intention is not a statement of fact nor is a promise a statement of fact. A person whom fails to carry out his stated intention does not thereby make a misrepresentation See Wales v. Wadham (1977) 1 WLR 199. PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.
JUSTICES
HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria
JOHN INYANG OKORO Justice of The Court of Appeal of Nigeria
RITA NOSAKHARE PEMU Justice of The Court of Appeal of Nigeria
Between
ALHAJI MUKTAR AHMED MOHAMMED Appellant(s)
AND
1. MOUKTAR MOHAMMED
2. USMAN DANTATA JNR. Respondent(s)
HELEN MORONKEJI OGUNWUMIJU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Lagos State High Court delivered by Honourable Justice E. O. Williams-Dawodu on 21st February, 2006. The High Court granted some of the releifs prayed for by the claimant and possession of the property in dispute.
The case at the High Court arose out of an agreement between the Claimant and the 1st Defendant dated 28th November, 1980. The agreement was tendered during the trial by the Claimant and admitted as Exhibit MM2.
In exhibit MM2, the Claimant agreed to accept a consideration of N50,000 from the 1st Defendant and assign the property at Ikoyi to him while the 1st Defendant agreed to use his good offices to get one COUNTING LIMITED to transfer a portion of a property at Sharada, Kano to a nominee of the claimant called DALFAM NIGERIA LIMITED also at a cost of N50,000.
The Claimant alleged that he had performed his own side by putting the 1st Defendant in possession of the Ikoyi property which he claimed is plot C, Turnbull Road (now No. 1, Jabita Close), Ikoyi, Lagos while the 1st Defendant failed to perform the agreement as regards the Sharada Property.
The dissatisfaction of the Claimant and his attempt to nullify Exhibit ‘MM2’ based on allegation of fraudulent misrepresentation and breach of contract led to this case which was commenced at the Lagos High Court in 1992. The parties claimed and counter claimed the following reliefs:
a) A declaration that the Plaintiff is the person entitled to the Certificate of Occupancy dated the 26th of September, 1979 registered as No. 24 at Page 24 in Volume 1875 of the Register of Deeds kept in the Lagos State Lands Registry.
b) A declaration that the Plaintiff is the person entitled to all that premises known as Plot C, Turnbull Road (now 1, Jabita Close), Ikoyi, Lagos
c) A declaration that the contract between the Plaintiff and the 7th Defendant entered into on the 28th day of November, 1980 was no longer binding by reason of serious breach by the 1st Defendant and fraudulent misrepresentation.
d) An order rescinding the contract between the Plaintiff and the 7th Defendant entered into on the 28th day of November, 1980 on the ground of fraudulent mis-representotion and breach of contract.
e) Possession of the said premises.
f) N500,000,000 (Five Hundred Million Naira) as general damage for breach of contract,
g) An order of Perpetual Injunction restraining the Defendants, their agents and any persons whatsoever deriving authority from them from dealing with and or interfering with the Plaintiffs right in and over the aforesaid land in any manner however having the effect of prejudicing and adversely affecting the rights of the Plaintiff to the land.
The Appellant filed an Amended Statement of Defence and Counterclaim. Specifically, the Appellant counterclaimed as follows:
a) An order directing the Plaintiff forthwith to execute a Deed of Assignment of the property at 1 Jabita Close, Ikoyi Lagos in the name of the 1st Defendant or at his option in the name of his nominee, the 2nd Defendant”.
ALTERNATIVELY
If the Plaintiff shall refuse and/or neglect to execute the said Deed of Assignment within 30 days of the date of the court order, the Registrar of Titles, Lagos State shall on being served with the order of this Honourable Court effect a change of title to the name of the 1st Defendant or at his option in the name of his nominee, the 2nd Defendant”.
b) An order directing both the 1st defendant and one CAUNTING LIMITED on receipt by the 1st Defendant of a sum of N50,000 from the Plaintiff to execute a Deed of Assignment of the portion of the property of Sharada Industrial Estate, Kano covering only 2 Acres of factory and office Buildings and 2 Acres of Virgin Land out of the whole portion covered by Kano State Certificate of Occupancy No. LKN/IND/RC/82/111 in the name of the 1st Defendant or his nominee, DALFAM NIGERIA LIMITED in accordance with the Agreement dated 28th November, 1980.
ALTERNATIVELY
If the 1st Defendant and/or the said CAUNTING LIMITED shall refuse and/or neglect to execute the said Deed of Assignment within 30 days of the date of the court order, the Registrar of Titles, Kano State shall on being served with the order of this Honouroble Court cause a survey of the portion to be Assigned to be made at the cost of the 1st Defendant and the said CAUNTING LIMITED and effect a change in the name of the PLAINTIFF, or at his option in the name of his nominee, DALFAM NIGERIA LIMTED.
The 2nd Respondent’s 19 Paragraph Amended Statement of Defence and Counterclaim is at page 294 to 297 of the records. He also counterclaimed as follows:
a) A declaration that the 2nd Defendant is entitled to be the registered owner of the property situate on Plot ‘C’ Turnbull Rood Ikoyi also known as No. 1 Jabita Close Ikoyi,
b) An order directing the Registrar of Title, Lagos State on being served with the order of this Honourable Court to effect a change to title to the name of the 2nd Defendant.
c) Alternatively, a declaration that the Plaintiff ought to execute an assignment in respect of Plot ‘C’ Turnbull Road Ikoyi (No. 1 Jabita Close Ikoyi) in favour of the 2nd Defendant.
d) An order directing the Chief Registrar of the Court to execute a Deed of Assignment in respect of Plot ‘C’ Turnbull Rood Ikoyi (No.1 Jabita Close, Ikoyi) in favour of the 2nd Defendant.
Upon hearing of this case, the learned trial judge granted reliefs (a), (b) (e) and (g) as claimed and dismissed the counterclaims of both the Defendants.
Dissatisfied with the judgment of the High Court, both the Defendants filed two separate Notices of Appeal to this Honourable Court on 8th March, 2006. The Notice of Appeal of the 2nd Defendant now Appellant containing 5 grounds of appeal is at pages 389 to 382 of the records. The appeal of the 2nd Respondent was entered in this court as CA/L/172/08. This is the 2nd appeal to be heard on this issue based on the same facts being filed by the 2nd Defendant at the lower court. This court on 22nd January, 2009 had ordered that the three appeals be heard by this court concurrently.
Briefs were settled in respect of this appeal. The Appellant in this appeal who was the 2nd Defendant at the trial court filed an amended notice of appeal on 16th May, 2011 and the brief on the same day. The 2nd Respondent here who was the 1st Defendant at the lower court did not file any brief. He is a nominal party here. The 1st Respondent here who was the Claimant at the trial court filed a 1st Respondent’s amended brief on 11th May, 2011 which was deemed filed on 7th July, 2011. The Appellant identified 4 issues for determination which are stated below. These same issues were adopted by the Respondents’ counsel and I will adopt the first three issues in the determination of this appeal as the forth issue is superfluous since the learned trial judge did little evaluation of evidence. However, the issues as adumbrated by Appellant’s counsel are set out below:
“1. Whether the Learned Trial Judge was right to have held that the agreement between the and the 1st Defendant/Respondent dated 28th November, 1980 is invalid and ineffectual (Ground 2).
2. Whether the Learned Trial Judge was right when she granted the claimant’s claim for possession and declarations that he is the person entitled to the premises and Certificate of Occupancy covering property known as plot Turnbull Road (now 1, Jabita Close), Ikoyi, Lagos (Ground 1).
3. Whether the Learned Trial Judge was right when she refused to grant the 2nd Defendant/Appellant’s counterclaim (Grounds 3 and 4).
4. Whether the judgment of the Learned Trial Judge is against the weight of evidence.”
ISSUE ONE
Learned Appellant’s counsel Mr. O. A. Owolabi argued that even though the learned trial judge early in the judgment appreciated the fact that the claims of all the parties were based on the proper construction and effect of Exhibit MM2, however, the Learned Trial Judge refused to interpret same and held that the agreement is invalid on the ground that the identity of both property relating to the agreement were not indicated and more particularly that schedules 1 and 2 which should form part of Exhibit MM2 were missing when the agreement was tendered. Counsel argued that even though the Appellant agreed with the Learned Trial Judge who refused reliefs (c) (d) and (f) on the basis of lack of identity of the property mentioned in MM2, that decision cannot be supported in law. Counsel submitted that the Court could have reached the same conclusion on reliefs (c), (d) and (f) and also dismissed reliefs (a), (b), (e) and (g) of the Claim if the Court had interpreted and construed Exhibit ‘MM2’ and applied such to the facts of the case before the Court.
Learned Counsel conceded that Exhibit ‘MM2’ simply described the Property in Lagos as “piece of land situate at… Ikoyi” while it described the Property at Kano as “land situate at Sharada Industrial Area, Kano” without supplying the details in the two schedules attached to Exhibit MM2 to describe them fully. Nevertheless, the description in the main body of Exhibit MM2, the pleadings and evidence before the Court identify the location of the properties in dispute. Exhibit MM2 is not a Deed of Assignment. It is an agreement by two friends to sell their respective Property. Both parties knew and were ad idem on the Property they had agreed to sell.
Learned Senior Counsel submitted that Paragraphs 3, 4 and 9 of the Amended Statement of Claim at Pages 186 -188 of the records described the Ikoyi Property as being at Turnbull Road, Ikoyi, Lagos. Reliefs (a) and (b) of the Claim specifically asked for declarations in respect of the Property at Plot C Turnbull Road (now 1 Jabita Close), Ikoyi, Lagos and supplied the particulars of Registration of the Land at the Lagos State Lands Registry. Paragraphs 8, 9, 10, 11, 12 and 15 of the Amended Statement of Claim also specifically mentioned the Sharada Property and left no doubt as to both property referred to in Exhibit MM2.
Learned Counsel also relied on S.75 of the Evidence Act and S. 6, 19 and 20 of the said Evidence Act to argue the point that facts admitted and agreed upon need not be proved and that parole evidence is admissible to show the contents of the schedule not tendered in evidence. Counsel also relied on DOSUNMU V. DADA (2002) 13 NWLR Pt.783 Pg.1 at Pg. 32 Para E – Pg. 33 Para F; OGBAHON v. The REGISTERED TRUSTEES OF CHRIST’S CHOSEN CHURCH OF GOD (2002) 1 NWLR Pt.749 Pg. 675 at Pg.704 PARAS C-E.
Counsel submitted that the Learned Trial Judge should have given effect to the provisions of Exhibit ‘MM2’ which her lordship had found to be the main bone of contention between the parties. Moreso as there is no ambiguity in the wordings of Exhibit ‘MM2’. Its validity is not in question, its clarity is beyond argument as regards the terms of the two separate transactions embedded in it. He argued that the parties must be held bound by their agreement… and there should be no room for departure from what are stated therein”. He cited JERIC NIGERIA LIMITED V UBA PLC (2000) 15 NWLR Pt 691 Pg 447 at Pg 466 para C what was left to be decided was whether there was indeed such fraud, misrepresentation or breach of contract on the part of the 2nd Respondent to warrant a rescission or the nullifying of the entire contract. In that regard, counsel argued that the pleadings and evidence before the court failed woefully to support these allegations as the 2nd Respondent had demonstrated copiously. He cited ALHADJA KAIYOAJA v. LASISI EGUNLA (1974) 12 SC 49. He added that what is more, the unproven allegation of fraud, misrepresentation and breach of contract relate to the Sharada, Kano Property. The parties which are to transfer (COUNTING LIMITED) and to receive (DALFAM NIGERIA LIMITED) albeit through the good offices of the parties to Exhibit ‘MM2’ are stated on the face of the document. The evidence shows that the Claimant did not pay the consideration but was taken to the site for inspection.
Counsel then argued that it is not the case that the Claimant was deceived or that the Sharada Property was occupied or sold to someone else. It seems on the balance of probabilities as could be glimpsed from the totality of the evidence before the court that the Claimant simply failed to give consideration and take over possession of the property on the basis that a title deed was not ready. The parties also knew that certain acts should be carried out before title in the Kano Property can be perfected. (See Clause 5 of Exhibit ‘MM2′).
Counsel urged the court to hold that the circumstances leading to the unfortunate gun shot attack on the 2nd Respondent and his eventual long sojourn in the United States of America do not support fraud or breach of Sharada transaction to warrant the repudiation of both the Sharada and Ikoyi transactions, misrepresentation or breach in respect of the Sharada transaction.
Counsel concluded by reference to the sister case and as copiously argued by the Appellant in CA/L/172/08, that even if there is fraud, misrepresentation or beach in respect of the Sharada transaction (which is denied), it does not and cannot vitiate or warrant a rescission of the separate, distinct and independent Ikoyi transaction.
Learned counsel for the 1st Respondent who was also the claimant at the trial court in the brief settled by Mr. Olufemi Olulowo argued to the contrary that the Learned Trial Judge appreciated the fact that the claims of the parties depended on the proper construction of Exhibit MM2. The Learned Trial Judge then found that the document Exhibit MM2 cannot qualify to be an instrument of Land transfer. Counsel argued that any instrument of land transfer must contain the names of the parties, the property, the consideration and the interest to be granted. Omission of a single even subsidiary provision is fatal. He cited MEGARRY AND WADE on the Law of Real Property, 3rd Edition 1967 at Pg. 552.
Counsel argued that Exhibit MM2 did not contain the identity of the real property sought to be transferred. Counsel submitted that the reference to S.75 of the Evidence Act and OGBAHON V. REGISTERED TRUSTEES SUPRA AND DOSUNMU V. DADA supra are irrelevant as counsel cannot by consensus confer validity on an invalid document. Counsel submitted that parol evidence is not admissible to identify a property to be transferred in an instrument of transfer because it will offend S.132 (1) of the Evidence Act. Counsel further submitted that there is a distinction between when parties are ad idem about the property in dispute and when the parties are seeking the interpretation of the Court over an Instrument of land transfer-whether it is binding on them or not. In the former case, the court will rely on the case of the parties as presented but in the later, the court will be confined to the document with which parties intend to make their case. In this case, the issue is not about the consensus of the parties as per the identity of the property either in Kano or Lagos but on the status of Exhibit MM2, whether it is enforceable or not.
Counsel submitted that assuming without conceding that Exhibit MM2 is valid in law, its interpretation would still not be favourable to the Appellant. He argued that the Learned Counsel for the Appellant had made an issue of the money mentioned in the agreement as a result of which he argued that Exhibit MM2 is not a Barter Agreement. However money is merely used as a measure of value in the Barter Agreement. The value of N50,000 placed on both the properties in Lagos (1 plot) and Kano (4 Acres) respectively attest to this point. If in a contract of exchange, one has given his property and the other refused to perform his obligation, the former will be entitled to rescission for want of performance on the side of the later. He cited AKEREDOLU V. AKINREMI (1989) 2 NSCC 320; MAKANJUOLA V. BALOGUN (1939) 3 NWLR Pt. 108 Pg 192 and AUTA v AFIA 6 WACA 216,
Counsel argued that according to SNELL’S PRINCIPLES OF EQUITY BY R. E. MEGARRY & P. v. BAKER, 27th Edition at Page 1542, fraud is said to consist of a “false statement of facts which is made by one party (D) to another (p) knowingly, or without caring whether it is true or false, with the intent that it should be acted upon and which is infact acted upon by the other (P)’. counsel argued that this is the exact description of 2nd Respondent action and attitude when he represented himself as the owner of the Sharada Industrial Estate in Kano to the 1st Respondent when in fact he was not. He cited AFEMAI v. AG EDO STATE (2001) 14 NWLR Pt 733 Pg 425 at 445.
I quite agree that the learned trial judge appreciated the fact that the claims of all the parties are based on the proper construction of Exhibit MM2 and on page 375 of the Record, the trial judge opined as follows:-
“…It is apparent that the main and singular issue as it appears between the parties and in contention is what Exhibit MM2 means being the purported Agreement between the Claimant and the 1st Defendant upon which the parties lay their claims and from which rights, obligation or entitlements one way or the other arose… The different interpretation given by the parties form the basis of their claims and positions and the Court is being urged to interpret and determine the status of the said Exhibit MM2 in the determination of the issues involved…”
However the learned trial judge at page 377-378 held as follows:-
“The issue of the validity of Exhibit MM2 in terms of the detailed identity of the land being a fundamental issue needs be raised in the circumstance of this case, From the arguments written and unwritten the parties believed that everything in their minds and their intentions come under the legal structure of the said Exhibit MM2 which from their individual case could be seen as the reference point upon which they seek and urge the court for interpretation in the determination of their rights and obligation.
The Agreement would have been considered legally sufficient if there were better particulars from the oral testimonies as a nexus thereto. The oral evidence referred to Sharada Industrial property and the other as Ikoyi Turnbull not specific identity for the particular portions of land both in Ikoyi, Lagos and Sharada Kano. There are several plots of land both in Ikoyi and Sharada. In my humble view Exhibit MM2 without more lacks an essential ingredient necessary in a document on land transaction which in effect essentially deprives it of its validity. The knowledge of the parties of the individual property is another matter entirely which differs from the validity of the document Exhibit MM2 itself which the parties intended to bind them or believe bound them at it’s execution as an Agreement to Assign.
The learned trial judge on this point then concluded as follow:-
“That being the case, given the said Agreement before the Court Exhibit MM2, it cannot be said to be intended to assign any portion of land between the parties for the reasons earlier given not even with the references made to the land by parties. It is therefore for this reason in my humble view that I am unable to find the said document an agreement to assign any land and in that wise the question of its interpretation, with therefore not arise having come to such a conclusion”.
It would be pertinent at this point to set out the contents of Exhibit MM2 which was executed on 28th November, 1980.
‘This Agreement is made the 28th day of November, 1980 BETWEEN ALHAJI USMAN DANTATA JNR. of No…. Turnbull Road, Ikoyi, Lagos (hereinafter called the 1st party which expression shall where the con so admits include his successors, assigns and other persons deriving title under him) on the one part AND MOUKTAR MOHHAMED of No. 3 Okotie Eboh Road, Ikoyi, Lagos (hereinafter called the 2nd Party which expression shall where the con so admits include his successors, assigns and other persons deriving title under him on the other part. WHEREAS the 1st party is desirous, willing and able to purchase piece of land situate at …………. Ikoyi Lagos, and whose description is as per schedule one, belonging to the 2nd party and, WHEREAS the 2nd party is desirous, willing and able to purchase a piece of land situate at Sharada Industrial Area, Kano and whose description is as per schedule 2 of this Agreement, belonging to the 1st Party.
NOW IT IS HEREBY AGREED AS FOLLOWS:-
1. That the 2nd Party, for a consideration of Fifty Thousand Naira (N50,000.00) agrees to transfer his title and ownership of the said piece of land at Ikoyi, Lagos, to the 1st Party to this Agreement.
2. That the 1st Party, for a consideration of Fifty Thousand Naira (N50,000.00) agrees to transfer his title and ownership over the said piece of land situate at Sharada, Kano, to the 2nd Party to this agreement.
3. That the Deed of Assignment in respect of the piece of land situate at Sharada shall be Executed between COUNTING LIMITED (a limited liability company whose registered address is 5/6 Club Rd. Kano and from whom the 1st Party draws title and with whose consent the 1st Party assigns) AND DALFAM NIG. LTD. (a limited liability company whose registered office is at 41 Unity Road, Kano) in whose favour and whose behalf the 2nd Party purchases the said property situate at Sharada, Kano.
4. The Deed of Assignment in respect of the piece of land situate at Ikoyi, Lagos, belonging to the 2nd Party shall be Executed between the 2nd Party as the “Assignor” and the 1st party as the “Assignee” at such time as the 1st Party may so desire. Although possession of same may pass to the 1st Party immediately, documents in respect of the piece of land now with the 1st party shall remain in the name of the 2nd Party at the discretion of the 1st Party.
5. That both 1st and 2nd Parties recognize and agree that Assignment in respect of the piece of land situate in Sharada, Kano shall be in respect of four (a) Acres only comprising the 1st two (2) Acres which accommodates the factory and office block buildings and additional next two (2) Acres of the remaining land.
6. That the 1st Party undertakes to pursue and obtain permission from the Kano State Ministry of Lands and survey for the said Assignment of the Sharada land. Plus permission to devide and issue separate Certificate of Occupancy.
7. The 1st Party agrees to let the 2nd Party and or DALFAM NIG. LTD to take immediate possession and occupy the portion of the piece of land under this Agreement, pending the execution of the Assignment.
8. That both 1st and 2nd Parties agree to deligently (sic) comply and act in strict consonance with all other Agreements both written and oral in respect of this transaction.
As witness, the parties hereto have set their hands the day and year first above written”. Let me address the issue of the legal significance of Exhibit MM2 first. It is obvious from the contents of Exhibit MM2 particularly paragraphs 3 and 4 thereof that the agreement is merely a formalization of the proposed intention of the 1st and 2nd Respondents to devise title in respect of their respective landed property to each other, and not an instrument devising any title to either party. It has no more legal significance than an agreement to purchase land which is different from a conveyance or a deed of assignment. The title of the document itself says it all, to wit that it is an “Agreement to Assign” NOT a “Deed of Assignment”. In the interpretation of a written agreement, the court must confine itself to the plain words used therein. See Friday Abalogu v. The Shell Petroleum Dev. Co. of Nig. Ltd (2003) 5 SCNJ 262. Paragraphs 3 and 4 of the agreement clearly show the intention of each proposed assignor to pass legal title in the property so indicated to the proposed assignee.
Exhibit MM2 is merely a registrable and registered instrument which can be tendered to prove the terms of the oral agreement between the parties or as a receipt to prove payment and equitable interest since one of the executors was in possession. See Iyiola Ogunjumo & Ors v. Muritala Ademolu & Ors (1995) 4 SCNJ 45; Adetutu Adesanya v. Alhaji S. D. Aderounmu & Ors (2000) 6 SCNJ 242.
With the greatest respect, I disagree with the view of Learned 1st Respondent’s counsel that Exhibit MM2 is an instrument of Land transfer. Rather, Exhibit MM2 is not an instrument intended to convey title to land. This aspect of this issue is resolved in favour of the Appellant.
As regards the second limb of this issue, there is no doubt that it is the duty of a claimant to prove clearly and unequivocally the precise area to which his claim relates. However, it is trite law that this duty does not arise if the Defendant does not dispute the identity of the property or location of the property in dispute in his statement of defence. See Alimi Akanbi Dada v. Chief Jonathan Dosunmu (2006) 9 SCNJ 31. The Defendant must specifically make it an issue in his pleadings by disputing the area or location or features described by the claimant. See Eng. Bayo Akinterinwa v. Cornelius Oladunloye (2000) 4 SCNJ 149, Akpan & Ors v. Umoh & Ors (1999) 7 SCNJ 154. See Alhaji Raufu Gbadamosi v. Olaitan Dairo (2007) 1 SCNJ 444.
Paragraphs 3, 4 and 9 of the Amended Statement of Claim at pages 186 -188 of the records describe the Ikoyi Property as being at Turnbull Road, Ikoyi, Lagos. Reliefs (a) and (b) by the Claimant specifically asked for declarations in respect of the Property at Plot C Turnbull Road (now 1 Jabita Close), Ikoyi, Lagos and supplied the particulars of Registration of the Land at the Lagos State Lands Registry. Paragraphs 8, 9, 10, 11, 12 and 15 of the Amended Statement of Claim specifically mentioned the Sharada property and left no doubt as to both Property dealt with in Exhibit MM2.
Paragraphs 5, 7, 8, and 9 of the Further Amended Statement of Defence and Counterclaim of the Appellant at pages 290 to 293 of the records also particularised the Properties covered by Exhibit MM2 copiously.
The 1st Respondent as claimant gave copious evidence in support of his claim on the Property that could leave no one in doubt as to the identities of the Property in dispute. He tendered a copy of the Certificate of Occupancy of the Ikoyi property as Exhibit MM1.
The sworn Affidavit evidence of the 2nd Respondent, the 1st Respondent cross-examination and the sworn affidavit in response to the cross-examination at pages 258 -261, 262 – 263 and 266 -272 of the records do not create a doubt that the parties are ad idem on the identities of the properties in contention.
I have to agree with the submission of learned Appellant’s counsel that the case of Makanjuola v. Balogun cited supra by 1st Respondent’s counsel do not support the conclusion of the learned trial judge, the learned trial judge had relied on Auta v. Ibe (2003) 13 NWLR Pt. 837 Pg 247, however, in that case, the issue was that the Plaintiff failed to identify her land sufficiently in the deed tendered while the Defendant tendered a title deed which sufficiently identified his own land and had priority in point of time to the Plaintiff’s title.
In his contribution to the leading judgment, his Lordship BELGORE JSC said at Page 269 of the reports that: “In a case for declaration of any right or title over land, that land must be described with certainty so that the parties are ad idem as to its identity…” (Underlining mine).
The Supreme Court also confirmed the principle that when parties are ad idem, as in this case, there could be no room for a finding that the identity of property in dispute is unascertainable. See MAKANJUOLA V. BALOGUN (SUPRA) at pg.203-204.
I found particularly preposterous the argument of learned 1st Respondent’s counsel that this is a claim for declaration of title to property and that Exhibit MM2 is an instrument conveying land. It is in fact an action for rescission of contract due to fraudulent misrepresentation.
I also agree with learned Appellant’s counsel but with the greatest respect to the learned trial judge that the court hinged that particular finding on erroneous grounds. It is pertinent to point out that the Exhibit MM2 was tendered without objection by the Claimant to support his case and the reasons given by the learned trial judge were never canvassed by any of the parties. None of the parties pleaded or addressed the Court on the validity of Exhibit ‘MM2’. The Court also never directed the attention of Counsel to the missing schedules 1 and 2 and allow the parties to seek the opportunity to remedy this defect or address the Court on the effect. This approach of the trial Court was discouraged in BORNU HOLDING COMPANY LIMITED V. ALHAJI HASSAN BOGOCO (1971) 1 ANLR 324 also reported in (1971) NSCC 321. The main clause of Section 75 of the Evidence Act provides that “No fact need be proved in any civil proceedings which the parties thereto or their agents agree to admit at the hearing or which, before the hearing, they agree to admit by any writing under their hands, or which by any rule of pleading in force at the time they are deemed to have admitted by their pleadings”
The court cannot go outside the case made by the parties without allowing the parties an opportunity to be heard. Thus, the issues for determination must be limited to those raised by the parties in their pleadings. The court is without power to raise and consider novel issues without hearing the parties. See Nkuma & Anor v. Joseph Odili & Ors (2006) 3 SCNJ 31, Alhaji Aminu Ishola v. Union Bank of Nig. (2005) 2 SCNJ 19.
It is my humble view that the learned trial judge’s finding that Exhibit MM2 is invalid and the refusal to interpret its provisions by reason that it does not contain details and particulars of both property in dispute is with the greatest respect misconceived in fact and in law.
I agree with the learned counsel for the Appellant that in the circumstances, this court has power under section 15 of the Court of Appeal Act 2004, to proceed to interprete Exhibit MM2 and to come to conclusions which the learned trial judge could have reached by virtue of the evidence led.
The question of the interpretation of a document is a matter of law. One of the canons of interpretation is that words used in a document must be given effect and that no word must be added or subtracted or ignored. In fact the whole document must be considered in totality and not in isolation so as to ascertain the intention of the parties. See Afrotech Services Nig. Ltd v. M.A & Sons Ltd & Anor (2002) 12 SCNJ 298, Unilife Development Co. v. Mr. Kolu Adeshigbin & Ors (2001) 2 SCNJ 116; Chief S. O. Agbareli & Anor v. Dr. Anthony Minira & Ors (2008) 1 SCNJ 409; Adetoun Oladeji Nig. Ltd v. Nigerian Breweries Plc (2007) 1 SCNJ 375.
I have considered Exhibit MM2 and the record of proceedings at the lower court particularly the evidence of the Appellant on page 258-272 of the record and the evidence of the 1st Respondent on Pg. 202-226 of the record.
My own humble understanding upon a construction of the various terms of Exhibit MM2 is that it encapsulates two separate agreements each with its own conditions but embodied in one document. The testimonium clauses 1, 4, 7, relate exclusively to the Ikoyi property while clauses 2, 3, 5, 6 relate exclusively to the Kano property. I did not glean an intention by the parties to barter or exchange one property for the other. Rather it was two separate property transactions each with its own incidents and conditions. Since we cannot import the word “exchange” into the agreement and there is a clear distinction between the terms of both contracts, I hold fast to the view that there are two agreements.
In any event, ‘Barter’ is defined in the New Webster’s Dictionary of English Language, International Edition as “to exchange (goods of services against something else) without using money”. In this case the parties each sold their property for consideration with different attendant conditions. It was not trade by barter. I am of the view that the two independent contracts do not depend on each other for consummation and must be interpreted independently of each other.
On the issue of fraudulent misrepresentation, it is clear from Exhibit MM2 that one Caunting Limited a nominee of the 2nd Respondent was to execute the deed of assignment of the Sharada property to Dalfam Nig. Ltd a nominee of the 1st Respondent. The basis of the 1st Respondent’s claim was the non performance of clause 3, 5 and 5 of the agreement to assign. The 1st Respondent based his complaint on the fact that the 2nd Respondent had not put him in possession of the Sharada property in Kano inspite of repeated demands because the 2nd Respondent was legally incapable of doing so as the 2nd Respondent had no rights in Counting Limited and had falsely and fraudulently represented that he had the power to do so.
Let us look at the circumstances surrounding the execution of the contract relating to the delivery of possession and transfer of title of the Sharada Kano property from the 2nd Respondent to the 1st Respondent. At this point we are here concerned with whether there has been non performance by the 2nd Respondent of that contract in order to justify a rescission of all the terms of agreement contained in Exhibit MM2. Let us first consider the evidence of the 1st Respondent under cross-examination at page 212-213 of the record where he first conceded that he did not give the Appellant consideration of N50,000.00 but later said he gave the later the N50,000.00. Essentially he prevaricated on the issue of consideration, his prevarication supports the evidence of the 2nd Respondent that the 1st Respondent never paid consideration for the Sharada Kano property. Consideration must be sufficient while it need not be adequate. Under cross-examination by counsel for the 2nd Defendant/Appellant, at page 220 of the records, from line 15 et seq, the Claimant/1st Respondent said as follows:
“…The 1st Defendant did not take me to the Sharada Property because he had someone to do that. I do not remember exactly at the stage I was taken to Kano. When I got there the property was non-functional as office only the guards. It is correct to say the property at sharada was not in occupation at the time of the transaction. No I did not enter the Sharada Property”.
As regards the allegation of fraudulent misrepresentation, let me restate the position of the law as I understand it.
There are various specie of misrepresentation. It is important to distinguish between the different types of misrepresentation because they give rise to different remedies. Fraudulent misrepresentation can entitle the represented to rescind the contract while other types of misrepresentation merely give rise to an action for damages. The 1st Respondent is here relying on fraudulent misrepresentation to rescind the whole agreement in Exhibit MM2.
In terms of disclosing information during the process of contractual negotiation, there are essentially two types of obligation which could be imposed by the courts upon contracting parties. The first is to disclose all known material facts to the other contracting party. The second is a duty to refrain from making active misrepresentations; that is to say, a contracting party is not compelled to disclose all information, but once he does disclose, he must do so truthfully.
The law has always been that a misrepresentation must be an unambiguous false statement of existing fact. A statement of intention is not a statement of fact nor is a promise a statement of fact. A person whom fails to carry out his stated intention does not thereby make a misrepresentation See Wales v. Wadham (1977) 1 WLR 199.
Next, let us consider whether indeed from the totality of the evidence available to the lower court, the 2nd Respondent fraudulently misrepresented some facts to the 1st Respondent to allow the 1st Respondent to rescind the contract. The 1st Respondent claims that the 2nd Respondent misrepresented the fact of his title to the Sharada property. Clauses 3, 5 and 6 of the agreement in Exhibit MM2 are to the effect that the deed of assignment in respect of the Sharada Kano property would be executed by Counting Limited from whom the – 2nd Respondent) 1st party draws title and with the consent of the 1st party 2nd Respondent in favour of Dalfam Ltd on behalf of the 1st Respondent. Paragraph 5 describes with particularity the portion to be assigned to the 1st Respondent. Perhaps paragraph 6 is the most significant in the circumstances. At the risk of being repetitious it is again set out below for ease of reference:
6, “That the 7th Party undertakes to pursue and obtain permission from the Kano State Ministry of Lands and survey for the said Assignment of the Sharada land”.
Thus the provisions of clauses 3, 5 and 6 clearly show that the parties all understood that the 2nd Respondent indicated the legal nature of the title which at that time vested in him to the extent that even though the 2nd Respondent drew title from Counting Ltd, Legal Estate in the Shadara Property was not vested in him but in Counting Ltd at the time of executing Exhibit MM2 and all the necessary steps were to be taken in future to perfect the transfer of title from Counting Limited to the 1st Respondent.
In fact paragraph 7 shows that the 1st Respondent was to take immediate possession. I have carefully read his evidence on oath and there is nothing in it to suggest that at anytime he was prevented from taking possession of the Sharada land in Kano. He said that the deed of assignment was not perfected and not that he was prevented from taking possession.
In my humble view the 2nd Respondent did not fraudulently misrepresent the state of affairs as it existed in relation to the Sharada Kano property as at the time of executing Exhibit MM2. Also the failure of the 2nd Respondent to carry out his intention in paragraph 5 does not amount to fraudulent misrepresentation. We must remember that the Appellant got whatever interests he has from the 2nd Respondent. In any case, the first issue is resolved in favour of the Appellant.
Issue two
This issue is whether the court was right when it granted the Claimant’s claim for possession and declared that he is the person entitled to the premises and certificate of occupancy covering property known as plot C Turnbull Road now 1 Jabita Close, Ikoyi, Lagos.
Learned counsel for the Appellant argued that it is clear that the Ikoyi transaction is a separate agreement which should be given effect to. If this is done, there is no way, in law and equity, that the Claimant could sustain the claim for possession and declarations when the pleadings and evidence before the court are considered. Counsel argued that even when the agreement Exhibit MM2 is jettisoned and discountenanced, the pleadings and the plethora of evidence before the court cannot support the Claimant’s relief for possession and declarations. Counsel posited that the length of time in which the 2nd Respondent and after him, the Appellant occupied the property before action was instituted raises the equitable defence of laches and acquiescence in favour of the Appellant and 2nd Respondent. What is more, learned Appellant’s counsel added, the 1st Respondent agreed under cross-examination that he received N50,000 consideration for the Ikoyi Plot. He let the Respondent into possession. He gave evidence on his own volition that he released the original title deed to the 2nd Respondent that the 2nd Respondent repaid his debt to International Bank of West Africa (IBWA), took a loan and built up the property since the early 1980s. He was also aware that a Third Party, that is the Appellant had been put in possession. Although the 1st Respondent denied the sale to the Appellant there is evidence before the Court that the Appellant had been in possession for over 22 years with the knowledge of the 1st Respondent and the 2nd Respondent confirmed that he had indeed transferred his interest to the Appellant. He referred the court to Exhibit MM4 and the evidence of the 1st Respondent under cross-examination at page 225 lines 22 to 30. Counsel further submitted that in the circumstances of this case, the pleadings and the evidence before the court cannot justify the reliefs (a), (b), (e) and (g) granted by the learned trial judge and that the fact that the title deed of the Ikoyi property remains in the name of the 1st Respondent is not by itself a magic wand that could be utilized to justify these reliefs without recourse to the facts before the court as highlighted above.
In reply learned counsel for the 1st Respondent submitted that it is trite law as established by the Supreme Court in a plethora of cases including D. O. IDUNDUN AND ORS V DANIEL OKUMAGBA (1976) 10 SC 227 that ownership of land may be proved by production of documents of title which must, of course be duly authenticated in the sense that their due execution must be proved. A Certificate of Occupancy is normally the evidence of possession and rights provided for in favour of the person in possession of such certificate. The 1st Respondent tendered his Certificate of Occupancy in respect of Plot C Turnbull Road, Ikoyi and it was admitted as Exhibit MM1.
Counsel further argued that it was undisputed at the trial court that the Certificate of Occupancy – Exhibit MM1 in respect of Plot C Turnbull Road now No 1, Jabita Close was in the name of the 1st Respondent, even the Appellant and the 2nd Respondent admitted that the property originally belonged to the 1st Respondent. The 2nd Respondent did not establish the transfer of title of the property to him in any way. The Appellant did not also establish the alleged transfer of the said property to him either in equity or in law. He referred this Court to the 2nd Respondent’s dealing with bank for the loan facility granted to him on the said exhibit MM1 which could not be effected without the 1st Respondent’s consent and authorization because the property still belong legally to him even though the 2nd Respondent had taken possession. Therefore, possession of the property known as 1, Jabita Close, Ikoyi, Lagos was given to the 1st Respondent recognition of the existing facts in respect of the ownership of the property in question as governed by the law.
Counsel submitted that the Appellant and 2nd Respondent seek to establish claims under equity. He posed the question of whether the Appellant and the 1st Respondent had come to equity with clean hands which he answered in the negative. From the inception of the agreement – Exhibit MM2, 1st Respondent had shown GOOD FAITH. Under the said agreement, 2nd Respondent was to put the 1st Respondent in possession of the Sharada property in Kano State but failed to so do for about twelve years, 2nd Respondent kept promising and delaying despite several demands by the 1st Respondent. The only conclusion any reasonable man in 1st Respondent’s shoes could come to was that the 2nd Respondent had no property to pass and this had been established. Counsel argued that the 2nd Respondent alluded to the defence of laches and acquiescence in his argument, this point of law will not avail him. Since it only applies to equitable claims and can never be pleaded against a party who has a legal claim. He argued that for this defence to avail, there must be evidence of standing by and intention to defraud. He cited IGBUN V. NYARINYA (2001) 5 NWLR (Pt.707) Pg 554 at 579, paragraph H. In this case, 1st Respondent could not be said to have stood by, 1st respondent wrote several letters to the 2nd Respondent, which constitutes a continual notice of his rights as regards the transaction between them. There was also no intention to defraud on his part, as he gave up possession of his land (Ikoyi) to 2nd Respondent as agreed but the 2nd Respondent never gave his to the 1st Respondent. Counsel supported his contentions with the following cases NWAKOBI V. NZEKWU (1961) 1 All NLR 455; KAYODE V. ODUTOLA (2001) 11 NWLR Pt. 725 Pg. 684; IGBUN v. NYARINYA supra.
On this issue, the learned Trial Judge held as follows:
“It is important briefly to recall as earlier stated that the matter went up to the apex court for determination of whether or not the Claimant has a cause of action. The court held in the affirmative. In the case Of USMAND DANTATA V. MOUKTAR MOHAMMED (supra). It is from this position that I shall proceed. I shall begin with the heads of claim one after the other. The nature of proof in a civil case must be dictated by the peculiar circumstances of the available evidence. The burden of proof in a case is upon the party who substantially assets on the affirmative an issue and who would fail if no evidence were adduced. See the case of IMANA V. ROBINSON (1979) 3-4 SC 1.
CLAIM ONE
A declaration that the Claimant is the person entitled to the certificate of occupancy dated 26 September, 1979 registered as No 24 at page 24 in volume 1875 of the Registration of Deeds kept in the Lagos State Lands Registry. In the instructive and authoritative case of DANTATA V. MOHAMMED (supra) per Ayoola JSC as he then was the lead judgment, I quote
(“for a person to be entitled to a declaration he must show the existence of a legal right, subsisting or in the future and that the right is contested. Put in another way, what would entitle a plaintiff to a declaration is a claim which the court is prepared to recognize and which if validly made, it is prepared to give legal consequence to.”
There is no doubt that a declaratory relief is an equitable relief the grant of which requires the exercise of the court’s discretion which must be done judicially and judiciously to state or declare as existing state of affairs in law in the Claimant’s favour as seen from the averments in the statement of claim. See the cases of DANTATA V. MOHAMMED (supra) THOMPSON V. AROWOLO (2003) 4 SC (pt.11) 108 MORENTKEJI V. ADEGBOSIN (2003) 4 SC Pt 1 Pg.44.
The Claimant herein is still in possession of the certificate of occupancy Exhibit MM1 of 1979 in respect of the Ikoyi property No. 1 Jabita Close which is still in his name, he therefore still has enforceable legal rights thereto which in my humble view entitles him to the declaration being sought. As was held by the Apex Court in the case of USMAN DANTATA V. MOHAMMED (supra) that the instant case is distinguishable from that of EGBUCHE V. IDIGO (11 NLR 140)
The Claimant from the amended statement of claim and amended statement of defence and counter claim of both the 1st and 2nd Defendants still retains the Certificate of Occupancy. As laid down in the locus classicus case of IDUNDUN V. OKUMAGBA (1976) 9-10 SC 227 at 246 -250 title to land can be proved by production of documents of title, in this case i.e. Certificate of Occupancy Exhibit MM1 duly authenticated. Consequently I therefore hold in favour of the claimant.”
I have quoted extensively hitherto in this judgment the reasoning of the learned trial judge particularly Pg.375-376 of the records. Therein the learned trial Judge found that the 1st Respondent was in possession of the Certificate of Occupancy and therefore has legal rights which are enforceable and the court proceeded to enforce them by granting the 1st and 2nd legs of 1st Respondent’s claims. The court relied on Idundun v. Okumagba (1975) 9-10 SC 140 to hold that production of title documents is one of the ways of proving title to land.
The first and second heads of the 1st Respondent’s claims at the lower court were not reliefs for declaration of title to the Ikoyi land. There was no contest about the fact that the legal title still resides with the 1st Respondent. That was why the 1st Respondent asked for declaration of entitlement to the certificate of occupancy which was in possession of the 2nd Appellant. That was also why the second head of claim was essentially for possession of the Ikoyi property.
Therefore the reliance by the learned trial judge on the erroneous fact that the 1st Respondent was in possession of the title deeds and was thus entitled to his claim is with the greatest respect obviously a misconception of the facts and consequently the law applicable.
It is apt at this point to reiterate the purport of the case of Idundun v. Okumagba supra relied on by the learned trial judge. The case deals with the five ways in which ownership of land can be proved and not ways of acquiring title to land. That is to say Idundun v. Okumagba is about matters of evidence to be adduced or how to discharge the burden of proof rather than the substantive law on acquisition of title See Alh. Karimu Adiso v. Emmanuel Oyinwola & Ors (2000) 6 SCNJ 290.
The principles laid down in IDUNDUN V OKUMAGBA supra cannot, with respect, be applied mechanically without recourse to facts before the court which disallows the 1st Respondent’s contention in equity. The case of DANTATA V DANTATA (2002) 4 NWLR Pt. 756 Pg 144 is apposite. This Honourable Court per Bulkachuwa JCA had this to say at page 166 paragraphs to E:
“However, in this instance, Exhibit D3 was signed by the two parties. The Appellant is a legal practitioner who knows the implication of signing documents. The Certificate of Occupancy in respect of the plot in question was handed over to the Respondent by the Appellant on his own free will and evidence was led to show that the deed of assignment was drown up but was torn by the Appellant. The only conclusion one can arrive at from the facts of this case is that the Appellant intended to sell the plot in question, he entered into the agreement with his eye open, received consideration of N1 million which he never returned to the Respondent, equity will have come in to stop him from retracting from the agreement. He cannot be allowed at this stage, having benefited, to refuse to give consideration to the Respondent by passing title of the property to him…”
See also OKAFOR V. SOYEMI (2001) 1 NWLR Pt.698 Pg.465 at Pg.474, 475 and 476.
Let us look at the defence of laches and acquiescence put up by the Appellant and the 2nd Respondent in this appeal. Also, in the case of KAYODE V. ODUTOLA (2001) 11 NWLR, Pt. 725, Pg. 584, paragraph E-H, the Supreme Court held that for the doctrine to succeed, it must be established that such laches and acquiescence must amount to fraud and thus spelt out the elements, which have been accepted to constitute such requisite fraud as follows:
i. The Plaintiff (person) who set up the doctrine of laches and acquiescence must have made a mistake as to his legal rights
ii. Such a Plaintiff (person) must have expended some money or must have done some act on the faith of his mistaken belief.
iii. The Defendant, the possessor of the legal right must also know of the existence of his own right which is inconsistent with the right claimed by the plaintiff, as doctrine of acquiescence is founded upon conduct with knowledge of one’s legal rights.
iv. The Defendant, the possessor of the legal right must know of the Plaintiff mistaken belief of his rights.
v. The Defendant, the possessor of the legal right must have encouraged the plaintiff in his expenditure of money or in the other acts, which he has done either directly or by abstaining from ascertaining his legal rights.
We have considered the facts and the law pleaded by the parties. I have already made a finding that no fraudulent intent or misrepresentation can be imputed to the 2nd Respondent by virtue of the provisions of MM2.
Let us examine the justice of this case given the agreement and the actions of all parties involved. This is necessary in view of the 1st Respondent’s claim that the Appellant cannot resort to equity. The second clause in paragraph 4 of Exhibit MM2 stipulates that the 2nd Respondent may take possession of the Ikoyi property immediately, which he did after paying the consideration of N50,000.00. He then paid off the indebtedness of the 1st Respondent in order to secure the title deeds from the bank. Thereafter he took a loan to improve the property with the co-operation of the 1st Respondent. Some years later he sold the property to the Appellant when he needed money to take care of himself after he was shot by armed robbers. Throughout this period, the provisions of the first clause of paragraph 4 to transfer legal title to the 2nd Respondent was ignored by the parties. However the receipt of the purchase price by the 1st Respondent, with delivery of possession by him to the 2nd Respondent confers on the later an equitable interest in the Ikoyi property. See Godwin Nsiege & Anor v. Obinna Mgbemena & Anor (2007) 4 SCNJ 359; Thompson v. Arowolo (2003) 4 SCNJ 20.
I have read the evidence of both the 1st and 2nd Respondents at the lower court. There is nowhere in which the 1st Respondent claimed that anyone prevented him from taking possession or delivery of possession was denied him by the 2nd Respondent or Counting Nig. Ltd from whom the 2nd Respondent draws interest. The refusal of the 1st Respondent to take possession is another matter entirely devoid of the fact that the terms of paragraph 7 providing that he could take possession was not frustrated by the 2nd Respondent. At pg. 267-268 of the Record, the 2nd Respondent under cross-examination conceded that due entirely to the initial indifference of the parties, neither passed legal estate or title to the other as stipulated in paragraphs 3 and 4 of exhibit MM2. The 1st Respondent on the other hand claimed that it was because the 2nd Respondent had no title to pass to him in respect of the Sharada Kano property that legal title was not passed to him within to years and he sued to rescind the contract for lack of performance. There is no doubt from the record that the evidence of the 2nd Respondent as to his interest in the Sharada Kano property is true and he believed same to be true when he signed Exhibit MM2.
I am aware that the law is that where a seller is shown as not having title vested in him at the time of sale, the contract of sale must be vitiated on application of the principle “nemo dat quod non habet” and such a contract is void ab initio. See Alh. Ibrahim Mohammed v. Klargester Nig. Ltd (2002) 7 SCNJ 443.
Resolving this case would have been simplicity itself if the above principle were applicable to the facts of this case. If the 2nd Respondent had indicated in Exhibit MM2 that he had legal estate to pass on to the 1st Respondent at the time of sale, which turned out to be false, the contract in respect of the Sharada Kano, property would have been vitiated. However the very wordings of paragraphs 3 shows that the legal title in the Sharada property resides in Counting Nig. Ltd from whom the 2nd Respondent draws title and with whose consent the 2nd Respondent would assign the Sharada property. A person with an equitable interest in land which is capable of being turned into a legal estate by specific performance can pass that equitable interest to another who would acquire the legal estate after the specific performance.
In fact Counting Ltd got title by way of Certificate of Occupancy from the Kano State Government in 1985 vide Exhibit MM10. It was after securing Exhibit 10 that it ought to have devised the portion agreed to the 1st Respondent.
In contractual relations where time is of essence in respect of performance of a contract, the law will imply performance within a reasonable time, although the contract between parties is silent in respect of time for performance. See Nig. Bank for Commerce & Industry v. Integrated Gas (Nig) Ltd & Anor (2005) 1 SCNJ 104, Thus where no term concerning time for performance was agreed upon by parties, it is the duty of the Court to read into the contract a term that performance was agreed to be given within a reasonable time. See Paul E. Edem v. Canon Balls & Anor (2005) 6 SCNJ 189.
There is evidence before the trial court that the Appellant took a long time to do the needful in respect of perfecting the title to be passed onto the 1st Respondent. However the evidence on record is that the issuance of the title documents including the excision of the four acres sold to the 1st Respondent was completely out of the control of the 2nd Respondent. It was something to be done by the Ministry of Lands and Survey in Kano State. In the meantime the 2nd Respondent who could have expedited matters was carried abroad for treatment where he stayed from 1985 to 1998.
The reasonable time envisaged by the legal authorities would depend on the circumstances of each case. In this case because of the circumstances of the 2nd Respondent, and the fact that specific performance was dependent on other people extraneous to the agreement, I cannot hold that an unreasonable time was taken in ensuring transfer of the property. From the evidence it is clear, at least to me, that the 2nd Respondent had acquired an equitable interest in the Ikoyi property and it would be inequitable to deprive him of it. I believe that the 1st Respondent never paid the consideration for the Sharada Kano property and even though he was never prevented from taking possession, he did not do so of his own accord. The 2nd Respondent cannot in equity be blamed for the apparent change of mind of the 1st Respondent and his attempt to renege from the contract after the 2nd Respondent had spent money to improve the Ikoyi property. With the greatest respect to the learned trial judge, it was wrong in law and in equity to grant the 1st Respondent possession and entitlement of the Certificate of Occupancy covering the Ikoyi property. This issue is resolved in favour of the Appellant.
Issue three
Issue 3 is whether the learned trial judge was right to have refused the Appellant’s counter-claim. Learned Appellant’s counsel argued that the learned trial judge with respect failed to consider the counter-claim relief (a) as a separate and distinct action from the Claimant’s claim.
The counter-claim of the Appellant as 2nd Defendant is at page 322 of the records. It prays that the court should direct the Claimant to execute a deed of assignment of the Ikoyi property in the name of the 2nd Respondent or at his option in the name of the Appellant.
Reliefs (a), (b), (c) and (d) in the counter-claim of Appellant is at page 297 of the records are also to same effect. They are designed not only to transfer the title to the Ikoyi property to the 2nd Respondent but to also give effect directly to the transfer of interest from the 2nd Respondent to the Appellant.
Learned counsel argued that Appellant purchased the property from the 2nd Respondent in 1983 and has been in possession since 1984 to the knowledge of the 1st Respondent and that the state of facts before the court certainly justify the declaration and orders sought by the Appellant both in law and in equity.
Learned counsel for the 1st Respondent argued that the Appellant in his counter claim asked the court to declare him the owner of Ikoyi’s land which legally belongs to the 1st Respondent. He pointed out that in a suit for declaration of title, the Claimant must possess a valid title superior to that of the Defendant.
1st Respondent’s counsel posited that since the Appellant has failed to establish the fact that he purchased 1, Jabita Close, Ikoyi, Lagos from anyone, either in law or in equity. Assuming without conceding that the Appellant purchased the land from the 2nd Respondent, he (Appellant) has not shown in any way that he got a valid title in line with the established principle of law – that sale or disposition of land is only valid and effective where the vendor or lessor has valid title to the land. He relied on HALIDU DADI V. IDI GARBA (1995) 9 SCNJ 232 at 239; (1995) 8 NWLR (Pt.411), 12 at 17. The basic rule as to transfer of title to personal property is that no one can give a better title than his own; he can give possession but not a title which is not vested in him (Nemo Dat Quod Non Habet). 1st Respondent counsel argued that the Appellant can only claim for property if he acquired the property in good faith, for value and with no notice of an adverse legal interests. Counsel argued that the Appellant refused to adduce evidence in respect of all the claims and that he was diligent in searching for the truth before he bought the property.
Learned 1st Respondent’s counsel argued that the Appellant may only take advantage of the second principle provided he (1) took in good faith, (2) took for value and (3) had no notice. From the circumstances of this case, Appellant could not be seen to have taken in good faith as a mutual friend of both 1st and 2nd Respondents, knowing fully well the facet surrounding the property in question.
Secondly, whether he took for value becomes outstanding as there is no proof of such purchase before the court i.e. payment receipt of the purported purchase. The onus is on him to prove that he actually purchased the property which he has failed to do. Lastly, he also has to show that he did all of the above without notice of the 1st Respondent rights or interest. He must prove that he was diligent and has done a proper investigation before he purchased the property. He also referred to IYIMOGA v. GOVERNOR PLATEAU STATE (1994) 8 NWLR Pt. 360 Pg.73.
As I held earlier in this judgment, the 2 agreements in respect of the two properties are distinct. I have also held that the equity of this case is in favour of the 2nd Respondent. The 2nd Respondent can succeed in a counter-claim against the 1st Respondent. However; I do not think the Appellant can succeed in a counter-claim against the 1st Respondent. In the first instance, there is no privity of contract between them. The appellant derived his equitable interest from whatever interest 2nd Respondent possessed. I agree with learned 1st Respondent’s counsel that indeed the 1st Respondent is not privy to the alleged contract between the 1st and 2nd Defendant hence, the Appellant cannot claim against the 1st Respondent. Indeed the whole basis of the equitable principle of bona fide purchaser for value without notice is to protect a purchaser from the fraud of his vendor per Mbanefo F. J. in the case of OMOSANYA v. ANIFOWOSHE (1995) 4 FSC Pg.94 at 99. The rule is that, if a purchaser fails to investigate title at all, he is fixed with constructive notice of everything that he would have discovered had he investigated the whole title. See also ODWUKWE v. ADMINSTRATOR GENERAL (1978) 1 SC 25 at Pg 30 per Obaseki JSC.
In this case, the Appellant never consulted with the 1st Respondent before the purchase. He merely acted on the presumption that “all was well” and the representation made to him by the 2nd Respondent.
In the case of ANIMASHAUN V. OLOJO (1990) 6 NWLR Pt.154 111 at 122-123 per Obaseki JSC explicitly dealt with the issue of ‘notice’ where the three types of Notices were defined as follows:
1. Actual Notice: a person has actual notice of all facts of which he has actual knowledge however that knowledge was acquired.
2. Constructive Notice: the court of chancery insisted that a purchaser should inquire about equitable interests with no less diligence than about legal interest which they could ignore at their own peril.
3. Imputed Notice: if a purchaser employs an agent, any actual or constructive notice which the agent receives is imputed to the purchase.
The fact of the matter here is that the Appellant had acquired interest from the 2nd Respondent before the 1st Respondent took the matter to court. There is conflicting evidence about whether or not the Appellant had notice of the fact that the 1st Respondent was unhappy with the performance of the contract before he bought the property from the 2nd Respondent. The evidence suggests lack of notice or knowledge of the controversy rather than the legal interest of the 1st Respondent. In BISHOPSGATE MOTOR FINANCE CORPORATION LTD v. TRANSPORTS BREAKS LIMITED (1949) 1 All E. R. 37 at Pg 45; (1945) 1 K. B 322 at 336 where Lord Denning stated:
“In the development of our law, two principles have striven for mastery. The first is the protection of property, no-one can give a better title than he himself possesses. The second is the protection of commercial transactions the person who takes in good faith and for value without notice should have good title”
Be that as it may, the Appellant has no legal right to counter-claim against the 1st Respondent. This issue is resolved in favour of the 1st Respondent,
Having resolved issues 1 and 2 on which the appeal turns in favour of the Appellant, this appeal succeeds in part. The judgment of the lower court is hereby set aside with all the orders contained therein except the order refusing the Appellant’s counter-claim. I make no order as to costs.
JOHN INYANG OKORO, J.C.A.: I had the privilege of reading before now the Judgment of my learned brother, Ogunwumiju, J.C.A. just delivered and I am in agreement with him that this appeal has merit and ought to be allowed. The issues canvassed in this appeal are the same as the ones decided in appeal No.CA/L/172/08 having arisen from the same decision. My learned brother has taken the pains to repeat the exercise in this appeal, which is somehow time consuming. I do not intend to repeat the exercise here. I rather adopt both the reasoning and conclusion of my learned brother ably enunciated in the lead Judgment as mine. I also hold that this appeal succeeds in part. I abide by all the consequential orders made in the lead Judgment. I also make no order as to costs.
RITA NOSAKHARE PEMU, J.C.A.: I have had a preview of the Judgment just delivered by my brother H. M. Ogunwumiju, J.C.A. and I agree with the reasoning and conclusions.
I have nothing more to add but to adopt them and to abide by the consequential order made that there shall be no order as to costs.
Appearances
A. O. Owolabi with him AkinyemiFor Appellant
AND
O. A. Olulowo for the 1st Respondent
B. A. Ayeni … for the 2nd RespondentFor Respondent
