CHIEF WALE TAIWO V. LAGOS STATE GOVERNMENT & ANOR.
(2010)LCN/3703(CA)
In The Court of Appeal of Nigeria
On Thursday, the 15th day of April, 2010
CA/L/432/06
RATIO
INTERPRETATION: EXCEPTION TO THE BASIC CANNON OF CONSTRUCTION WHERE WORDS ARE GIVEN ORDINARY MEANING
The basic cannon of construction of documents and statutes is that words be given their ordinary meaning excepting where giving the words their ordinary meaning would not reflect the clear intention of the makers of the document or lead to manifest absurdity or repugnance. In Beck vs. Smith (1836) 2 M & W 191 at 195 the court said thus:
“It is a very useful rule in the construction of statute to adhere to the ordinary meaning of the words used and to the grammatical construction unless that is at variance with the intention of the legislature, to be collected from the statute itself, or leads to any manifest absurdity or repugnance in which case the language may be varied or modified so as to avoid such inconvenience, but no further.”
This English Authority was cited with approval in Awolowo vs. Shagari (1979) All NLR 120 and Obviawe vs. I.R.P. Nig Ltd (1993) 3 NWLR (PT. 492) 126 at 139. PER R. C. AGBO, J.C.A.
JUSTICES
RAPHAEL CHIKWE AGBO Justice of The Court of Appeal of Nigeria
IBRAHIM MOHAMMED MUSA SAULAWA Justice of The Court of Appeal of Nigeria
HUSSEIN MUKHTAR Justice of The Court of Appeal of Nigeria
Between
CHIEF WALE TAIWO
(Suing as Attorney to M/S Parkview
Investment and Property Co. Ltd) Appellant(s)
AND
1. LAGOS STATE GOVERNMENT
2. ATTORNEY-GENERAL OF LAGOS STATE Respondent(s)
R. C. AGBO, J.C.A. (Delivering the Leading Judgment): The appellant’s principal M/S Parkview Investment and Property Co. Ltd acquired interest in No. 30 Queens Drive Ikoyi, Lagos. It thereafter sought the consent of the Governor of Lagos State to the assignment pursuant to the provisions of the Land Use Act. Both the appellant and its grantors executed exhibit ‘F’ on 13th October, 1993 in favour of the Lagos State Government. Exhibit ‘F’ is titled Application for approval of a subsequent transaction to a grant of a Right of Occupancy. Subsequent to the appellant and its grantors making exhibit ‘F’ the appellant deposited with the 1st respondent the sum of N900,000.00 deposit in relation to the approval fee. With the passage of Decree 52 of 1993 which purported to vest titles to land within 100 metres of 1967 shorelines, the appellant withdrew its application for the Governor’s consent and demanded a refund of the N900,000.00 deposit. The respondent refused and the appellant filed Suit No. Ld/2250/2000 demanding a refund of the said deposit of N900,000.00.
In its considered judgment, the trial court determined as follows:
“To my mind, Exhibit ‘F’ was issued by the defendants. It is an Application Form containing all the information and conditions to a Grant of the Governor’s Consent required, whereby the Grantor and the Grantee were informed about the deposit to be paid and the consequence of a withdrawal of the application as in this case. (See the caveat at the bottom of the front page of Exhibit ‘F’)
In Exhibit ‘F’, the Grantee (whom the plaintiff represents) has agreed to forfeit the whole or any portion thereof as the Chief Land Officer may decide, hence they signed the application form with the conditions. In my view, since the Chief Land officer did not state any portion of the deposit to be forfeited, it is presumed that the plaintiff has now forfeited the whole of the deposit paid.
Consequently, the plaintiff’s claim fail and the suit is hereby dismissed.”
Not satisfied with this judgment the appellant has filed this appeal. The notice of appeal contains the following grounds of appeal:
‘1. The learned trial judge having found that the defendants did not give evidence of forfeiture of any portion of the deposit made by the appellant pursuant to exhibit ‘F’, erred in law to have presumed that silence on the part of the defendants on the issue of the deposit meant ‘that the plaintiff has now forfeited the whole of the deposit paid’.
2. The learned trial judge erred in law to have presumed a forfeiture of the deposit made by the appellant on account of the silence of the Chief Land Officer as per the statement at the bottom of exhibit ‘F’ to wit:
“I am prepared within one week of demand to place on deposit at Government Treasury such amount as the Director of land Services (or such other officer as may be authorized from time to time) may consider sufficient to cover the approval fee for the above transaction. Should I withdraw the above application after making such deposit; I agree to forfeit the whole or such portion thereof as the Director of land Services or such other authorized officer may decided tendered before her, when such presumption is not cognizable under S. 114-131 of the Evidence Act of any other enactment or law.
3. The learned trial judge erred in law in dismissing the plaintiff’s claims, the plaintiff having proved his entitlement to the reliefs sought before her.
4. The judgment is against the weight of the evidence before the learned trial judge.”
From these grounds of appeal the appellant distilled 3 issues for determination in the appellant’s brief to wit:
“3.01. Whether or not the learned trial judge was right to presume that the appellant had forfeited the N900,000 deposit made to the respondent pursuant to exhibit ‘F’ tendered before the court.
3.02. Whether forfeiture of deposit made by the appellant to the respondents is automatic within the con of the forfeiture clause in exhibit ‘F’.
3.03. Whether the appellant s not entitled to judgment against the respondents as claimed on the writ.”
The respondents on the other hand in their brief of argument distilled and argued one issue which it distilled from ground 1 of the grounds of appeal. The issue is-
‘Whether the appellant is entitled to the sum of N900,000.00 having agreed vide exhibit ‘F’ i.e. Form 1c to forfeit the deposit made to the respondents who are entitled by law to collect such deposit from the respondents who are entitled by law to collect such deposit from the appellant’.
I must state from the beginning that there is absolutely no difference between grounds 1 and 2 of the grounds of appeal. The duplication repeats itself in issues 1 and 2 of the appellant’s issues for determination. Moreover, ground 1 of the grounds of appeal has been argued in issues 1 and 2 by the appellant. This practice has consistently been disparaged in so many cases by not only this court but the supreme Court. See Danfulani vs. Shekari (1996) 2 NWLR (pt. 433) 723, Ntegwule vs. Otuo (2001) 16 NWLR (pt. 738) 58, Adukpa vs. Nduka (2001) 14 NWLR (PT.734) 623.
Issues 1 and 2 of the appellant’s issues for determination and the only issue distilled by the respondent revolve around the construction given to the statement made at the bottom of paragraph 11 of exhibit ‘F’ which statement reads thus:
“I am prepared within one week of demand to place on deposit at Government treasury such amount as the Director of Land Services (or such other officer as may be authorized from time to time) may consider sufficient to cover the approval fee for the above transaction. Should I withdraw the above application after making such deposit; I agree to forfeit the whole or such portion thereof as the Director of land Services or such other authorized officer may decided.”
The argument of the appellant is that the statement does not mean and cannot be construed to mean that the applicant in exhibit ‘F’ automatically forfeits their deposit but that their forfeiting their deposit is contingent on the Director of Land Services or such other authorized officer determining whether or not the deposit should be forfeited either in full or partially. In the instant case where neither the Director of Land Services nor any other authorized officer has made such a determination, the argument goes, the offending statement cannot be said to have created a binding liability to forfeit as decided by the trial court. The basic cannon of construction of documents and statutes is that words be given their ordinary meaning excepting where giving the words their ordinary meaning would not reflect the clear intention of the makers of the document or lead to manifest absurdity or repugnance. In Beck vs. Smith (1836) 2 M & W 191 at 195 the court said thus:
“It is a very useful rule in the construction of statute to adhere to the ordinary meaning of the words used and to the grammatical construction unless that is at variance with the intention of the legislature, to be collected from the statute itself, or leads to any manifest absurdity or repugnance in which case the language may be varied or modified so as to avoid such inconvenience, but no further.”
This English Authority was cited with approval in Awolowo vs. Shagari (1979) All NLR 120 and Obviawe vs. I.R.P. Nig Ltd (1993) 3 NWLR (PT. 492) 126 at 139.
The language used by the applicants in the undertaking they made in exhibit ‘F’ is clear and unambiguous. They undertook, in the event of their withdrawing their application for the Governor’s consent to forfeit the money deposited by them for that purpose but that the Director of Land Services or any other authorized officer may waive the forfeiture of the entire sum or any such portion at his own discretion. That statement does not create room for any other interpretation, nor does this interpretation derogate from the clear intention of the parties to exhibit ‘F’, nor does it lead to any absurdity or repugnance. There have been no waivers from the Director of Land Services or any other authorized officer in that behalf, the applicants having decided to withdraw their application are caught in the unshakeable vice of their undertaking. There is no merit in the appellant’s attack on the construction of the relevant portion of exhibit ‘F’ by the trial court. It is a mere play of words. Issues 1, 2 and 4 hereby fail.
With the failure of issues 1, 2 and 4, issue 3 is completely undercut. If the deposited sum is liable to be forfeited, then the appellant cannot claim to have established his claim at the trial court.
There is a total want of merit in this appeal. It is hereby dismissed with N30,000.00 costs to the respondents.
IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A: I was privileged to have read before now, the lead judgment prepared and delivered by Agbo, J.C.A. Hence, I hereby concur with the reasoning and conclusion reached in the lead judgment in question, to the effect that the appeal is unmeritorious.
Consequently, the appeal is equally hereby dismissed by me. I abide by the order of costs of N30,000.00 awarded in favour of the Respondents.
HUSSEIN MUKHTAR, J.C.A: I was privileged to read in advance the lead judgment of my learned brother AGBO, J.C.A, and I agree that the appeal is completely devoid of merit.
I too dismiss the appeal as lacking in merit and abide by the consequential orders made therein including the one on costs.
Appearances
Appellant in personFor Appellant
AND
Mrs. Kehinde TaiwoFor Respondent
