JOHN TUNDE ORILOYE v. LAGOS STATE GOVERNMENT & ORS
(2014)LCN/6832(CA)
In The Court of Appeal of Nigeria
On Friday, the 7th day of February, 2014
CA/L/839/2007
RATIO
WHETHER A COURT OF APPEAL CAN EVALUATE EVIDENCE
It is also trite law as was decided in the case of EMMANUEL CHUKWU & ANOR V NIGERIAN TELECOMMUNICATIONS LTD (1996) 2 NWLR (Pt. 430) 294 that the evaluation of evidence is primarily the function of the trial judge. It is only where and when he fails to evaluate such evidence at all or properly that the Court of Appeal can intervene and re-evaluate such evidence. Per CHINWE EUGENIA IYIZOBA, J.C.A.
WORDS AND PHRASES: DOCTRINE OF NOTATION
What exactly is meant by the doctrine of novation; concept of waiver and principle of variation of contract? These were fully and exhaustively explained by the learned trial judge relying on various authorities. He stated that ‘Novation’ was defined by the Supreme Court in Union Beverages Limited v. Owolabi (1988) 1 NWLR (Pt. 68) 128 @167 “as a transaction whereby a new contract or new parties to a contract by consent of both parties express or implied is deemed to have been substituted for or with the one originally made, or a material part thereof is added to or materially amended.” In GROVER V. INTERNATIONAL ILE INDUSTRIES NIG. LTD (1976) 11 SC the Supreme Court at page 19 explained the doctrine of novation thus:
“the law is well settled that a later agreement by the parties to an original contract to extinguish the rights and obligations that the original contract has created is itself a binding contract, provided that the latter agreement is either made under seal or supported by consideration. Consideration raises no difficulty if the original contract sought to be extinguished is still executory. This is because each party by the later Agreement is deemed to have agreed to release his rights under the original contract in consideration of a similar release by the other. Such bilateral discharge may take the form of dissolution plus replacement. Thus, the parties may extinguish the original contract but substitute an entirely new agreement in its place”. Per CHINWE EUGENIA IYIZOBA, J.C.A.
JUSTICES
JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria
RITA NOSAKHARE PEMU Justice of The Court of Appeal of Nigeria
CHINWE EUGENIA IYIZOBA Justice of The Court of Appeal of Nigeria
Between
JOHN TUNDE ORILOYE Appellant(s)
AND
1. LAGOS STATE GOVERNMENT
2. ATTORNEY-GENERAL/COMMISSIONER FOR JUSTICE LAGOS STATE
3. EXECUTIVE SECRETARY LAND USE AND ALLOCATION COMMITTEE LAGOS STATE
4. PERMANENT SECRETARY, NEW TOWN DEVELOPMENT AUTHORITY
5. PERMANENT SECRETARY, LAND BUREAU 1ST – 5TH RESPONDENTS
6. MR. BABATUNDE KASALI 6TH RESPONDENT Respondent(s)
CHINWE EUGENIA IYIZOBA, J.C.A. (Delivering the Leading Judgment): The Appellant was by a letter of Allocation dated 25th September, 1986 allotted a Plot of land known as Plot 21, Block 77 in the Lekki Peninsula Scheme I. He paid the initial amount indicated in the letter of Allocation. Subsequently, Capital Development Levy was introduced, and a demand notice for the payment of the said Capital Development Levy was served on the Appellant, the payment of which was to be made within 90 days. The Appellant made part payment of the demand sum, but failed to complete same within the stipulated period of 90days. The Capital Development Levy was further revised upward. The Appellant attempted to pay the levy but insisted on paying the old rate. Having exceeded the stipulated payment period and being unwilling to pay the new rate, the appellant’s allocation was withdrawn and the land re-allotted to the 6th Respondent. The Appellant thereupon filed a suit in the High Court of Lagos State, Lagos Judicial Division claiming as follows:
(i) A Declaration that the claimant is entitled to the Statutory Right of Occupancy in respect of a plot of Land, Plot 21, Block 77, Lekki Peninsula Scheme 1, Lagos, measuring 936.502 square meters.
(ii) Mandatory Order of specific performance of a binding Agreement between the claimant and the defendants, in respect of the allocation of the said Plot of Land.
(iii) Perpetual injunction restraining the defendants, their Servants, Agents or Privies from dealing with the Plot of Land, OR alternately issuing a Certificate of Occupancy to any person other than the claimant.
The 1st to 5th Defendants/Respondents filed a joint statement of Defence consisting of 28 paragraphs to which the claimant filed a Reply of 14 paragraphs. The 6th Respondent filed a statement of Defence and counter claim of 17 paragraphs counterclaiming as follows:
(i) A declaration that the sixth respondent together with his wife is the owner of the piece of land lying, situate and being at Block 77 plot 21, Lekki Residential Scheme 1 being the holder of a valid and subsisting certificate of occupancy No.90/90/20051 in respect of the said land.
(ii) The sum of N500,000.00 being special and general damages for the destruction of the sixth respondent’s structure on the said land and trespass committed by the appellant his servants and/or agents.
(iii) An order of perpetual injunction restraining the appellant, his agents, servants privies and/or any person whatsoever claiming through him from further committing acts of trespass on the said sixth Respondent’s land.
The appellant filed a reply/defence to the 5th Respondent’s counterclaim. At the trial the appellant testified and called no other witness; the 1st to 5th Respondents called one witness. The 6th Respondent also testified and called no other witness. The Parties tendered numerous documents and their counsel filed addresses which were duly adopted. The learned trial judge delivered his judgment on 21st day of May 2007 dismissing all the claims of the appellant and granting reliefs i and iii of the counter claim of the 6th Respondent. The Appellant dissatisfied with the judgment filed a Notice of Appeal with 8 grounds of Appeal out of which he distilled five issues for determination as follows:
(i) Whether the learned trial judge was right to have held that the appellant did not lead any evidence in support of the averments contained in the REPLY to the statement of Defence of 1st to 5th defendants as well as the REPLY and defence to the statement of defence and counter-claim of the 6th Defendant.
(Ground 1 of the Grounds of Appeal).
(ii) Whether Exhibit ‘C’ letter of Allocation is a complete valid contract by itself and that Exhibits C5 and C7 (letters dealing with development levies) from the 4th defendants/respondent did not in anyway affect the validity of EX. C’ as a contract between the claimant and the 1st Respondent (Grounds 2, 3 & 4 of the Grounds of Appeal)
(iii) Whether the learned trial judge was right to have applied the doctrine of novation, concept of waiver and principle of variation of contract into the relationship created between the (Appellant and the 1st Respondent (the Lagos State government) particularly when issues were not joined on the three principles.
(Grounds 5 of the Grounds of appeal)
(iv) Whether the learned trial judge was correct to have used two methods in evaluating the evidence led before it by the parties particularly when his lordship held that the appellant did not give evidence of possession.
(Grounds 6 & 7 of the Grounds of Appeal)
(v) Whether the learned trial judge was right to have declared the Allocation of land contained in EXH ‘C’ forfeited and declared the 6th respondent owner of the said land (Ground 8 of the Grounds of Appeal).
The 1st – 5th Respondents and the 6th Respondent adopted the above issues formulated by the appellants. The 6th Respondent added one more issue:
Whether in view of the duly registered 6th Respondent’s Certificate of Occupancy registered as Number 90 page 90 in Volume 2005E, letter of rehabilitation and receipts of payment of all the land charges, the 6th Respondent has successfully proved his ownership over the land in dispute
ARGUMENTS:
ISSUE I:
(i) Whether the learned trial judge was right to have held that the appellant did not lead any evidence in support of the averments contained in the REPLY to the statement of Defence of, 1st to 5th defendants as well as the REPLY and defence to the statement of defence and counter-claim of the 6th Defendant.
(Ground 1 of the Grounds of Appeal).
APPELLANT’S ARGUMENTS:
Learned Counsel for the Appellant in his brief of argument on this issue referred to the Reply to the defence of the 1st-5th Respondents at pages 112-118 of the record; the reply to the 6th Respondent’s statement of defence/counterclaim at pages 150-165 of the record; the evidence of the Appellant and the cross-examination by the two sets of defendants/ respondents and submitted that it was strange the learned trial judge came to the conclusion that no evidence was led in respect of the two pleadings. Counsel submitted that the superior court of records have held in numerous cases that a party must sink or swim with the case he presents in court and that it is not the business of the court to repair or improve his case for him under any circumstance. He cited YABO vs. KAJIJI 1 (2004) 43 WRN 9343. Counsel further submitted that if the learned trial judge had considered the evidence and cross-examination of the appellant, the judgment would not have been against the appellant. Learned counsel submitted that the answer to issue one is that the trial Judge was wrong. He cited the case of LARIMIE vs. DPMS LTD (2005) 12 SC @102 to 103 and concluded that it is the law that where parties have embodied the terms of their contract in a written document, extrinsic evidence is not admissible to add to, vary subtract from or contradict the terms of the written instrument
1st- 5th RESPONDENTS ARGUMENTS:
Learned Counsel, in the 1st -5th Respondent’s brief of argument referred to the observation of the learned trial Judge at page 273 of the record:
“It must be stated from the onset that the Claimant did not lead any evidence in support of the many averments contained in his reply to the Statement of Defence of the 1st -5th Defendants and his reply to the Statement of Defence and defence to Counter-Claim of the 6th Defendant. The Claimant did not file any additional Statement in his support of the averments in these processes and none was adopted in the course of his testimony. It is elementary that facts in pleadings not proved by evidence will not be given substance by the Court.”
Counsel then referred to:
Order 32 Rule 1 of the High Court of Lagos State (Civil Procedure) Rules 2004 which provides that:-
1) Subject to these rules and to any enactment relating to evidence any fact required to be proved at the trial of any action shall be prove by written deposition and oral examination of witness in open Court.
2) ………………………..
3) The oral examination of a witness during his evidence-in chief shall be limited to confirming his written deposition and tendering in evidence all disputed documents or other exhibits referred to in the deposition.
It was submitted by counsel that by the above special provisions of the Lagos State High Court (Civil Procedure) Rules 2004, it is imperative for a witness to file written deposition in support of all his pleadings and same to be adopted during his evidence-in-chief. Where a party failed to file a written deposition in support of any of his pleadings, he is deemed to have led no evidence. It was further submitted that failure to file written deposition in support of a particular pleading like a Reply and defence to Counter Claim by the Appellant as in the instant case, amount to failure to give evidence in support of the pleadings. The evidence of the Defendants/ Respondents therefore remained unchallenged and the pleading of the Claimant deemed abandoned. Counsel relied on EGBUNIKE V. ACB LTD (1995) 2 NWLR (PT. 375) 34 AT 55 Also, YUSUF V. OYETUNDE (1998) 12 NWLR (PT. 578) 483 AT 490.
Learned counsel submitted that the only exception to the above mentioned provision, is where the other party, like the Defendants/ Respondents in this case, have admitted facts or averments in the pleadings, then there will be no need for further proof on the part of the Claimant/Appellant . AJUWON V. AKANNI (1993) 12 SCNJ 32 AT 57. Counsel submitted that the sole witness deposition of the Claimant does not cover averments in his Reply, particularly paragraphs 2,3,4,5,8,9,11,12,13 and 14 of the Claimant’s Reply to the 1st -5th Defendants Statement of Defence at pages 112-118 of the Record. It also failed to cover averments in paragraphs 4, 5 and 6 of the Claimant’s Reply to the 6th Defendant’s Statement of Defence/Counter Claim. Furthermore, counsel submitted at no time did the Defendants admit facts in the above stated paragraphs. It followed therefore that these paragraphs are deemed abandoned and that the learned trial Judge was right to have treated the pleading as of no consequence. It was submitted that the trial Judge was right in his holding at page 273 of the Record that the Appellant did not file any additional witness Statement on Oath in support of the averments in his 2 pleadings and none was adopted in the course of his testimonies. Learned counsel urged the court to decide issue 1 in favour of the 1st – 5th Respondents.
6th RESPONDENT’S ARGUMENTS:
Learned counsel for the 6th Respondent in his brief adopted the submissions of the 1st-5th Respondents. Counsel further submitted that the consequence of a party’s failure to lead evidence in support of averments contained in its pleadings is that the averment is deemed to have been abandoned. It is also trite that a party’s pleadings are no evidence, but on the contrary, it has to be proved by evidence. He referred to the cases of ANAMBRA STATE HOUSING DEVELOPMENT CORPORTATION V J.C.O EMEKWUE (1996)1 NWLR PT 426 PAGE 513; INSURANCE BROKERS OF NIGERIA V ATLANTIC ILES MANUFACTURING CO LTD (1996) 8 NWLR PT 455 PAGE 310 and submitted that the trial judge was right in his judgment at Page 273 of the records of proceedings when he held that the appellant did not proffer any evidence in support of his reply to the 1st -5th Respondents’ statement of defence and counter-claim, as well as the 6th Respondent’s statement of defence and counter-claim.
RESOLUTION OF ISSUE 1
A careful examination of the Record of Proceedings show that the Appellant filed replies to the 1st-5th Respondent’s statement of defence (pages 112-118); and also to the 6th Respondent’s statement of defence/ counterclaim (pages 160-165). There were unfortunately no written depositions accompanying the replies. This must be a grave error on the part of learned counsel for the Appellant as the consequence of pleadings without evidence in proof is well known and elementary. The Appellant’s contention is that his written deposition in respect of his statement of claim covered the averments in the Replies. That cannot be so because there would then have been no need for the replies. Learned counsel for the 1st-5th Respondents had submitted that the deposition of the Claimant did not cover averments in his Reply, particularly paragraphs 2,3,4,5,8,9,11,12,13 and 14 of the Claimant’s Reply to the 1st -5th Defendants Statement of Defence at pages 112-118 of the Record. It also failed to cover averments in paragraphs 4, 5 and 6 of the Claimant’s Reply to the 6th Defendant’s Statement of Defence/Counter Claim. Be that as it may, the fact remains that the learned trial judge stated the position and the law correctly when he observed:
“It must be stated from the onset that the Claimant did not lead any evidence in support of the many averments contained in his reply to the Statement of Defence of the 1st -5th Defendants and his reply to the Statement of Defence and defence to Counter-Claim of the 6th Defendant. The Claimant did not file any additional Statement in his support of the averments in these processes and none was adopted in the course of his testimony. It is elementary that facts in pleadings not proved by evidence will not be given substance by the Court.”In so far as no additional depositions were filed in respect of the Replies, it follows that those facts in the Replies not proved by evidence will not be given substance by the court. The facts in the Replies covered by the sole written deposition in support of the statement of claim will of course be exempt. Indeed in his judgment at page 273 of the Record, the learned trial Judge observed that the court will discountenance such portions of the two reply pleadings that raise fresh facts not already taken care of in the statement of claim in its considerations. Issue 1 is resolved against the Appellant and in favour of the Respondents.
ISSUE 2:
ii) Whether Exhibit ‘C’ letter of Allocation is a complete valid contract by itself and that Exhibits C5 and C7 (letters dealing with development levies) from the 4th defendants/respondent did not in anyway affect the validity of EX. C’ as a contract between the claimant and the 1st Respondent
(Grounds 2, 3 & 4 of the Grounds of Appeal)
APPELLANT’S ARGUMENTS:
Learned counsel referred to Exhibit “C1” the Letter of Allocation and all the conditions spelt out therein and submitted that a valid contract had come into existence between 1st respondent and the claimant/Appellant. Counsel argued that the implication was that the 1st respondent was under an obligation to issue the Certificate of Occupancy since the Claimant had paid for a survey plan produced in his name – via Exhibit C4. Counsel submitted further that the appellant’s interest amounts to a right of occupancy notwithstanding that the C of O had not been issued: S.9 of the Land Use Act 1999. Counsel contended that any forfeiture or revocation must be as provided under S.28 of the Land Use Act 1990. He referred to the case of Omega Bank Nig. Plc v O.B.C Ltd (2005) 1 SC 49.
It was also submitted that the right of the appellant as a result of Exhibit “C1” is guaranteed by Sections 43 & 49 of 1999 Constitution of the Federal Republic of Nigeria; and as such the Claimant in the circumstances had the right to request for specific performance by the 1st defendant to issue the Certificate of Occupancy.
1st-5TH RESPONDENT’s ARGUMENTS:
Learned counsel for the 1st -5th Respondent in reply submitted that the contract between the Appellant and the 1st Respondent was at the stage of execution as there were still steps to be taken for example, payment of conveyance fees, ground rents e.t.c and the issuance of a Certificate of Occupancy to confer title on the Appellant before the payment of Development Levy was introduced to the contract between the parties. Counsel contended that the contract between the parties included the requirement for payment of Capital Development Levy. Learned counsel submitted that the trial Judge at page 277 of the records in explaining the Principle of Novation referred to the case of GROVER V. INTERNATIONAL ILE INDUSTRIES NIG. LTD (1976) 11 SC where the Supreme Court at page 19 explained the doctrine thus:
“the law is well settled that a later agreement by the parties to an original contract to extinguish the rights and obligations that the original contract has created is itself a binding contract, provided that the latter agreement is either made under seal or supported by consideration. Consideration raises no difficulty if the original contract sought to be extinguished is still executory. This is because each party by the later Agreement is deemed to have agreed to release his rights under the original contract in consideration of a similar release by the other. Such bilateral discharge may take the form of dissolution plus replacement. Thus, the parties may extinguish the original contract but substitute an entirely new agreement in its place”
6TH RESPONDENT’S ARGUMENTS:
Learned Counsel for the 6th Respondent adopted the argument of the 1st-5th Respondents and further submitted that the contract between the 1st-5th Respondents and the Appellant was still at the executory stage as pronounced in the trial Court’s judgment. Counsel submitted that at the time exhibit C was issued to the Appellant, the contract could not be said to be complete as there were steps to be taken by the Appellant before the Certificate of Occupancy could be issued to him. There was a condition precedent to be performed before the vesting of title on the Appellant. Counsel referred to Niger Care Development Co. Ltd v. Adamawa State Water Board & Ors (2008) 9 NWLR (pt 1093) 498, (2008) 2-3 S.C pt 11, 202 where “a condition precedent” was defined as one which delays the vesting of a right until the happening of an event. Counsel also referred to Aina v. Jinadu (1992) 4 NWLR pt 233 91 at 109 paras 28 – 29 where the court summed up the effect of non-compliance with conditions precedent thus:
“If a law requires the fulfillment of a pre condition before a particular act or substantive or main act or action is to be done, non-fulfillment of the pre condition will be pre-judicial to the party in default”.
Counsel submitted that the Appellant under cross-examination at page 213 of the records confirmed that he was aware that other allotees in the area had been issued Certificates of Occupancy by the 1st Respondent since 1986. It was submitted that the reason why the Appellant had not been issued the Certificate of Occupancy is that he had not performed all the conditions precedent to the issue of the Certificate of Occupancy some of which include the payment of all relevant charges as contained in exhibit C5 and C7. Counsel further submitted that the trial judge was right to have applied the principle of Novation, waiver and variation of contract. The Appellant by payment of N43, 816.93 being part of the development levy introduced by the letter dated 23rd August 1990 to the subsisting contract has by the said part-payment waived his interest, right and benefit under the old agreement. The Appellant had by conduct which is part payment of the total consideration waived and varied the initial contract.
RESOLUTION OF ISSUE 2
The above issue was dealt with by the learned trial judge in his judgment at pages 275-277 of the Record. He said:
“This court agrees with the Counsel for the Claimant that the letter of allocation dated the 25th of September, 1986, Exhibit C1, constituted a definite offer of the allocation of the land in dispute to the Claimant by the Lagos State Government. The Court agrees with the counsel to the Claimant that the payment of the premium sum of N20, 345.00 by the Claimant in 1987 as evidenced by Exhibit C2, though paid outside the 90 days stipulated in the letter of allocation, constituted an acceptance immediately the Lagos State Government collected the money without amending the offer. This Court agrees with the Counsel to the Claimant that at this point a valid contract of allocation of land was reached. This Court agrees that the introduction of the capital development levy by the Lagos State Government in 1990 together with the clause on revocation of the allocation for non payment of the levy by Exhibit C5 and reaffirmed in 1992 by Exhibit C7 were aberrations to the agreed terms of the allocation of the land to the Claimant. But the Claimant did not protest the introduction of the capital development levy and the clause on revocation of the allocation for non-payment of the levy by Exhibit C5 which he duly received. Rather, the Claimant agreed to pay the levy as stipulated in the letter and did in fact make part payment in the sum of N43, 816.93k of the sum of N83, 816.93k demanded as the levy.”
I agree totally with the learned trial Judge. There was a valid contract , the terms and conditions of which were waived by the Appellant by payment of N43, 816.93 being part of the development levy introduced by the letter dated 23rd August 1990. The answer to issue 2 is in the negative in the sense that the letter of allocation Exhibit C1 was a complete valid contract by itself but its validity was affected by Exhibits C5 and C7. By making part payment of the capital development levy introduced by exhibit C5, the Appellant waived his rights under the original contact.
ISSUE 3:
Whether the learned trial judge was right to have applied the doctrine of novation, concept of waiver and principle of variation of contract into the relationship created between the (Appellant and the 1st Respondent (the Lagos State government) particularly when issues were not joined on the three principles.
(Grounds 5 of the Grounds of appeal)
APPELLANT’S ARGUMENTS:
In arguing this issue, learned counsel for the Appellant adopted his submissions on issue 2 and further contended that by applying the doctrine of novation, waiver and variation, the learned trial judge introduced extraneous matters into the simple contract. Learned counsel also submitted that issues were not joined on the three concepts applied by the learned trial judge neither were the parties called upon to make submission thereon.
1st-5th RESPONDENTS ARGUMENTS:
Learned counsel in response submitted that the issues are not points of law or special defences that ought to be specifically pleaded before the Court can invoke any of them. Relying on ADMINISTRATORS OF THE ESTATE OF SANNI ABACHA V. EKE SPIFF, counsel submitted that they are inferences which the court can draw from the facts or evidence before the Court. Counsel submitted that the learned trial Judge at page 277 paragraph 3 of the Records explained the Doctrine of Novation as stated in the case of GROVER V. INTERNATIONAL ILE INDUSTRIES (Supra). Counsel submitted that the learned trial Judge rightly applied the concepts.
The 6th Respondent on this issue adopted the submissions of the 1st-5th Respondents.
RESOLUTION OF ISSUE 3:
What exactly is meant by the doctrine of novation; concept of waiver and principle of variation of contract? These were fully and exhaustively explained by the learned trial judge relying on various authorities. He stated that ‘Novation’ was defined by the Supreme Court in Union Beverages Limited v. Owolabi (1988) 1 NWLR (Pt. 68) 128 @167 “as a transaction whereby a new contract or new parties to a contract by consent of both parties express or implied is deemed to have been substituted for or with the one originally made, or a material part thereof is added to or materially amended.” In GROVER V. INTERNATIONAL ILE INDUSTRIES NIG. LTD (1976) 11 SC the Supreme Court at page 19 explained the doctrine of novation thus:
“the law is well settled that a later agreement by the parties to an original contract to extinguish the rights and obligations that the original contract has created is itself a binding contract, provided that the latter agreement is either made under seal or supported by consideration. Consideration raises no difficulty if the original contract sought to be extinguished is still executory. This is because each party by the later Agreement is deemed to have agreed to release his rights under the original contract in consideration of a similar release by the other. Such bilateral discharge may take the form of dissolution plus replacement. Thus, the parties may extinguish the original contract but substitute an entirely new agreement in its place”At page 278 paragraph 4 of the Records, the learned trial Judge also quoted NIKI TOBI JCA (as he then was) on the Doctrine of Waiver in the case of CARRIBEAN TRADING AND FIDELITY CORPORATION V. NNPC (1992) 7 NWLR 252 @ 161 thus:-
“Waiver carries some element of abandonment of a known legal right. By his conduct, the person gives a clear impression that he is not ready to pursue his legal right in the matter. He may not say so in specific words. He may not say so at all. But once his conduct shows that trend, a Court of law will hold that he has waived his right.”
See also, UDONTE V. BASSEY (1999) 5 NWLR (PT. 604) 61 @ 618-9
where the Court of appeal referred to the well known principle of waiver and acquiescence which stipulates that a person will not be allowed to complain against an irregularity which he himself has accepted or waived or acquiesced in.The position here is that the appellant is contending that his agreement with the Respondents under Exhibit C1 is intact and that he is entitled to have the Respondents issue him a Certificate of Occupancy over the disputed land. An examination of the sequence of events as rightly held by the lower court show that by the subsequent actions of the Appellant, his rights under Exhibit C1 had been extinguished. When the Capital Development Levy was imposed by the Lagos State Government, and the Appellant received correspondence in respect of same from the 1st Respondent, the Appellant could have either protested the imposition of the levy and insisted on the terms of the original Letter of Allocation, or challenged the compulsory payment of the Levy in a Court of Law. The Appellant consented and went ahead to make part payment of the Levy imposed by Exhibit C5. By this act the Appellant can no longer insist on the original terms of the Letter of Allocation (Exhibit C1) as he has waived his right to do so. A modification of the original contract has impliedly been made. Part of the conditions of the new contract is that failure to pay the levy within the stipulated period would lead to automatic withdrawal of the offer and forfeiture of the allocation.
The learned trial Judge at page 279 paragraph 2 and 3 explained the Principle of Variation to a Contract when he stated thus:-
” For a Variation to be upheld, there must be a valid and subsisting contract on foot between the parties, there must be some form of consensus between the parties as to the obligation which are to be altered; and the parties must have acted in some way to their benefit or detriment in either agreeing to the variation or as a result of the variation. A mutual abandonment of the existing rights of the parties under the agreement between them is sufficient consideration to support a variation of the agreement.
The Respondents introduced the Capital Development levy in Exhibits C5 and C7 and thereby varied the terms of the original contract between the Appellant and the 1st-5th Respondents. The Appellant with the knowledge that penalty of withdrawal of the allocation will be imposed for non-compliance, consented to the variation by making part payment of the levy imposed by Exhibit C5. Having impliedly acquiesced to the variation of the contract, the Appellant was bound to comply fully with the new terms.
I hold that the learned trial Judge rightly applied the Principles of Novation, Waiver and Variation to the instant case as there are sufficient facts in the pleadings and evidence before the Court to arrive at that conclusion.
ISSUE NO 4:
Whether the learned trial judge was correct to have used two methods in evaluating the evidence led before it by the parties particularly when his lordship held that the appellant did not give evidence of possession.
(Grounds 6 & 7 of the Grounds of Appeal)
APPELLANT’S ARGUMENTS:
Learned counsel for the Appellant on this issue submitted that it was quite clear that the lower court had decided to give judgment in favour of the 6th respondent or else how can one explain the part of the judgment at page 276 where learned trial judge said. “The law is that where a party to a contract received a correspondence from the other party on the contract and he keeps silent thereon in circumstances in which a reply or reaction is obviously expected he is presumed to have accepted the contents of the correspondence. “The appellant will thus be deemed to have consented to the revised capital development levy and the condition contained in Exh. ‘C7’. On page 280 of the last paragraphs the learned trial judge stated.
“By the failure of the appellant to pay the demanded sum, the offer lapsed and the allocation became forfeited on the 1st December, 1992 without much ado.
There was no need for any further communication from the Lagos State Government to that effect. Counsel submitted that the response of the second respondent’s letter dated the 3rd of May, 2005, Exhibit C8, to the Appellant’s letter dated the 6th of April, 2005 amounted to an admission of the contents of Exhibit C8 and was an acknowledgment by the first to fifth respondents of the ownership of the land in dispute by the appellant”
Counsel submitted that earlier in the judgment, the lower court had held that Exh. ‘C1’ is a complete valid contract but at page 28 last paragraph the lower court held. “Therefore, by clause 8 of Exhibit C7 if the appellant failed to pay the demanded sum on or before the end of November, 1992, the offer of the allocation lapsed and the allocation became forfeited without the need for any further action by or correspondence from the Lagos State Government.” Learned counsel queried “how can a complete and valid contract – now hold that offer of allocation lapsed”. It must be emphasized that Exhibit “C1” was concluded in 1986 while exhibit ‘C7 is a document from the 4th respondent to the appellant in 1992 six years later. So how can the lower court arrive at a decision using Exh “C7″ to defeat Exh”C1” made between the Appellant and 1st Respondent when the 4th respondent was not part of Exh’C1’.
1st-5th RESPONDENTS ARGUMENTS:
Learned counsel for the 1st -5th Respondents in response submitted that the allegation in the Appellant’s issue 4 against the learned trial Judge is unfair. Counsel referred to the dictum of Niki Tobi JCA (as he then was) in the case of ODUNUKWE V. OFOMATA (1999) 6 NWLR PT. (607) 416 AT 425 on the duty of Counsel on evaluation of evidence. His Lordship in that case stated thus:-
“In attacking the evaluation of evidence by a trial Judge, Counsel has a duty to examine the totality of the evaluation and not pick pockets here and there to puncture or destroy the efforts of the Judge”
Counsel submitted that NNAEMEKA-AGU JSC In BABA V. N.C.A.T.C (1991) 5 NWLR (PT 192) 388 @ 422 reiterated the principle laid down in MOGAJI V. ODOFIN (1978) 9 SC 91:
” I believe it to be the law that facts on any issue in a case are assessed and evaluated by holding the evidence called by both sides to the conflict on the issue on either side of an imaginary balance and weighing them together, which ever outweighs the other ought to be accepted.”
Counsel submitted that applying the above to the instant case, the evidence before the lower Court is to the effect that the Appellant received correspondence on the revised Capital Development Levy and did not complain; rather, he consented to it by making part payment on the Levy. This evidence of consent was not controverted by the Appellant. Counsel argued that the Appellant further alleged on page 14 of his brief that the response of the 2nd Respondent’s letter, Exhibit C8 to his own letter dated 6th of April 2005 was an admission of acknowledgement of his ownership of the said land in dispute by the Appellant. Counsel submitted that the Appellant was never in possession of the disputed land and that he agreed under Cross- Examination at page 212 of the records that the land was swampy. Furthermore, his averment in his Reply to the Statement of Defence that he was in possession of the land was not supported by evidence as earlier submitted under issue No 1.
Counsel submitted that the acknowledgement of receipt of a correspondence per se does not fall within the five ways of proving title to land as enumerated in the case of IDUNDUN V. OKUMAGBA (1976) 9-10 SC 227. He further submitted that facts pleaded by a party must be supported by credible, satisfactory and convincing evidence. In the present case, the Appellant has failed to adduce evidence to support his pleadings on possession, and the learned trial Judge properly evaluated the available admissible evidence before him.
Counsel submitted that in the case of NWACHUKWU V. NWOSU (1990) 7 NWLR (PT. 160) PAGE 72, It was held that once there is proper evaluation of evidence by a lower court, an appellate Court has no business interfering, unless the decision is perverse and has occasioned a miscarriage of justice. It was submitted that the decision of the lower court is not perverse and has not occasioned a miscarriage of justice; rather it met the justice of the case. Counsel urged the court to resolve Issue 4 in favour of the 1st -5th Respondents.
6th RESPONDENT’S ARGUMENTS:
Learned Counsel for the 6th Respondent adopted the 1st-5th Respondent’s arguments on issue 4 and further submitted that the duty on the Court in evaluating evidence was considered in the case of ARASI EYIBAGBE V SAKA EYIBAGBE (1996)1 NWLR (PT 425) 411 where it was held that a Judge must first evaluate the evidence of both parties based on the totality of testimony adduced and weigh the evidence of the Claimant against that of the Defendant. Counsel submitted that in the instant case, the trial Judge had diligently evaluated the evidence of all parties before declaring the 6th Defendant and his wife the rightful owners of the property in dispute. Counsel submitted that the Appellant herein tendered his letter of allocation and letter of development levy which content includes payment within 90 days with other receipts of payment, including the receipt of part-payment of the development levy, which had only proved the waiver and that contract between the Appellant and the 1st-5th Respondent was still at the executory stage and yet to attain perfection. Whereas the 6th Respondent herein tendered letter of rehabilitation, evidence of payment of all charges and levies by the Government and duly executed and registered Certificate of Occupancy in favour of the 6th Defendant whose documents show completion and perfection of the contract of the sale of land. It is also trite law as was decided in the case of EMMANUEL CHUKWU & ANOR V NIGERIAN TELECOMMUNICATIONS LTD (1996) 2 NWLR (Pt. 430) 294 that the evaluation of evidence is primarily the function of the trial judge. It is only where and when he fails to evaluate such evidence at all or properly that the Court of Appeal can intervene and re-evaluate such evidence. Counsel submitted that based on the above, the learned trial judge properly and diligently evaluated the evidence of all the parties before adjudging the 6th Respondent and his wife as the lawful owners of the land in dispute. Counsel urged the Court not to interfere with the trial Judge’s evaluation of evidence, and to resolve issue 4 against the Appellant.
RESOLUTION OF ISSUE 4
I have carefully once again read through the very well articulated judgment of the lower court, there is nothing therein to suggest that the trial judge used two different methods or standards in evaluating the evidence adduced. In his judgment at page 276 of the Record, the learned trial judge observed:
“With respect to the revised capital development levy contained in Exhibit C7 together with the clause on revocation of the allocation for non-payment of the levy, the Claimant did not pay the money either partially or fully but he did not protest the demand notice either orally or in writing until 2005, thirteen years after it was served on him; he was silent on it. It must be conceded that the Claimant did say under cross-examination that he wrote other letters of protest in 2001 and before 2001 but no such letter was pleaded and no such letter was tendered and the testimony would thus be ignored by this court. The law is that where a party to a contract receives a correspondence from the other party on the contract and he keeps silent thereon in circumstances in which a reply or reaction is obviously expected, he is presumed to have consented to the contents of the correspondence. See Weidemann vs. Walpole (1891) 1 QB 534 @ 537. Iva Vs. Amakiri (1976) 11 SC 1, Gwani Vs. Ebule (1990) 5 NWLR (Pt. 149) 201 and Vaswani Vs. Johnson (2000) 11 NWLR (Pt. 679) 582. The Claimant will thus be deemed to have consented to the revised capital development levy and the conditions contained in Exhibit C7…”
The contention of the Appellant is that the learned trial Judge should have used the above criteria in assessing the 2nd Respondents letter dated 3/5/2005 in response to the Appellant’s letter of 6/4/05. The 2nd Respondents letter had indicated receipt of the petition requesting for protection and security of the Appellant’s title in the disputed property and indicating that the issue is being addressed and that they would revert to him in due course. They never did. It is the appellant’s contention that failure to revert to him meant an admission of the contents of the Appellants letter of 6/4/05 and an acknowledgment by the 1st – 5th Respondents of the ownership of the land by the Appellant. The argument with respect is untenable. The circumstances are not such that a reply or reaction is obviously expected. Further, the letter was written on 3/5/05. Three months later, by August 2005, the Appellant had filed a suit against the Respondents. It is therefore not surprising that the Respondents would choose to have the matter settled by the court. Most of the issues involved in this appeal are actually not disputed. The fact that the land in dispute was originally allocated to the Appellant is not in contest. Exhibit C1 was the letter of offer to the Appellant. The Appellant accepted the offer by making the necessary payments. Before the Certificate of Occupancy was issued to him, there was a change in Government policy with respect to development levy. The usual Government practice is to make the new levy applicable to all who have not been issued certificates of occupancy. Exhibit C5 was written to the Appellant to pay the new rate. If at that stage, the appellant refused to pay the new levy and insisted on being issued his certificate of occupancy, having fulfilled all the conditions in the letter of offer, his case may have been on firmer grounds. But the Appellant went ahead to pay a percentage of the new levy. By this singular act, he had waived his rights under the original agreement which had remained executory because the certificate of occupancy had not been issued. It is the issuance of the Certificate of Occupancy that concludes the agreement and makes it an executed agreement. By paying part of the new levy, the appellant now subjected himself to the conditions in Exhibit C5 by which he was informed of the new levy and the consequence of failure to pay within time. Further delay in completing payment exposed him to yet another increase in the development levy as shown in exhibit C7. The Appellant’s contention that he should pay the new rate only in respect of the percentage of the rate in C5 not yet paid was of course untenable. Once your C of O has not been issued when the new rate was put in place, you are bound to pay the new rate. The Appellant unfortunately took no steps to pay up. Between the date on Exhibit C7 and the date the Appellant wrote the letter of 6/4/05 to Government, there were thirteen years of inaction. At page 212 of the Record, under cross-examination, the Appellant said:
“It is correct that by exhibit C5 I was asked of Capital Development Levy. Of the sum demanded I paid N43, 816.93…I had a balance of N40, 000.00 to pay. As at this time Lekki Phase I was a swampy area yet to be demarcated………I paid the sum of N43,816.93 to show my intention of wanting the land…..It is correct that Exh C7 asked me to pay a sum of over N800,000.00. I did not make the payment. Exh. C8 was written in 2005. I did not write any letter before 2005 because my name remained as the bonafide owner of the plot of land in the scheme book of Lekki Phase I at NTDA until March, 2005 when it was renamed and I had no reason to write before then.”
Painful as all this is for the Appellant, he must hold himself accountable for all his problems. Having seen Exhibits C5 and C7 and the conditions thereon, did he expect the 1st – 5th Respondents to wait for him ad infinitum to make the necessary payments? There is no evidence that the Appellant in all those years took actual possession of the land. Although in his witness deposition the Appellant claimed that on the 4th of August 2005 information reached him that unknown persons had entered his plot and maliciously destroyed the fence he erected on the land; under cross-examination, he said that as at the time he made part payment of the initial development levy, the land was swampy and yet to be demarcated. There was no evidence as to when he put up the fence or the type of material he used in erecting the fence. If the Appellant was in possession and had actually put up a fence wall as he claimed, the 1st – 5th Respondents would not have transferred the property to another person. The learned trial Judge properly evaluated the evidence led in the case and there is no reason whatsoever for this court to interfere with the evaluation of evidence by the learned trial Judge. Issue 4 is resolved in favour of the Respondents and against the Appellant.
ISSUE 5:
Whether the learned trial judge was right to have declared the Allocation of land contained in EXH ‘C’ forfeited and declared the 6th respondent owner of the said land (Ground 8 of the Grounds of Appeal).
APPELLANT’S ARGUMENTS:
Learned counsel for the Appellant on this last issue submitted that the lower court had no jurisdiction to declare the allocation of plot 21 Block 77, Lekki Peninsular Scheme 1 to the Appellant as forfeited. Counsel submitted that “EXH C1″ created a subsisting right in Plot 21 Block, 77 Lekki Peninsular in the Appellant and such rights were not revoked lawfully before the purported grant of same plot to the 6th defendant. Counsel submitted that the Appellant was not lawfully or statutorily notified of the 1st Respondent’s intention to revoke. Counsel argued that the non-notification of the Appellant of the intention to revoke his right of occupancy contravened S. 35 of the state Lands Law. Counsel submitted that Section 18 of the state land law provides for notice to be served on the party in breach of the lessees covenant for one month, thereafter action must commence in a competent court for the recovery of the land in question. Counsel contended that in the instant case the 1st defendant did not serve any notice to the Appellant drawing his attention to the covenant he has breached as provided in Exhibit C1”. Counsel submitted that the issuance of C of O to the 6th respondents by the 1st Respondent in respect of the land already allocated to and upon which the Appellant is in possession does not extinguish the Appellant’s right of Occupancy in the said land. Counsel submitted that the tests to be applied in determining whether the issuance of the Certificate of Occupancy to the 6th Respondent was valid is as laid down by the Supreme court in Dantsoho vs Muhammed (2003) 6 NWLR (pt. 817) 457 and Ibrahim v Mohammed (2003) 6 NWLR ( Pt. 817) 647. When two holders of a statutory right of occupancy trace their title to the same Governor and over the same piece of land; the earlier takes precedence over the latter. Counsel argued that unless the Appellant’s certificate was revoked as required by S.28 of the Land Use Act, the Governor had nothing to confer on any other person as the maxim nemo dat quod non habet applies. It was submitted that since Exh “C1” was issued to the appellant in 1986, it is an earlier grant or deemed grant under S.34 or 36 of the land Use Act over Plot. 21 block 77 Lekki Pennisular Scheme 1, the grant can only be extinguished by a lawful revocation for overriding public interest or for any of the other reasons specified under S.28 of the Act. Learned counsel urged the court to uphold the appeal and to dismiss the counter claim of the 6th Respondent.
1st – 5th RESPONDENTS’ ARGUMENTS:
Learned counsel submitted in response to the above argument that no enforceable right accrues to the Appellant until the land has been paid for in full, and other conditions attached to the allocation, such as the payment of capital development Levy etc, are fulfilled. Counsel submitted that until these steps are taken, the contract between the Appellant and the 1st Respondent remains at the executory stage. At such a stage, the Vendor retains the right to rescind the contract of sale and resell to another purchaser. See ODUSOGA V. RICKETTS (1997) 7 NWLR (PT. 511) 1 @ 16, CHABASANYA V. ANWASI (2010) 10 NWLR (PT 1201) 163.
Furthermore, counsel argued, the relevant provisions of the law as regards Revocation would not avail the Appellant, as the Right of Occupancy is yet to accrue to him. The learned trial Judge was therefore right to declare the allocation of the Appellant as having been forfeited and the 6th Respondent, the owner of the land. Counsel urged the Court to dismiss the appeal as lacking in merit. The 6th Respondent adopted the submissions of counsel for the 1st – 5th Respondents on issue 5
6th Respondent’s issue 6:
Whether in view of the duly registered 6th Respondent’s Certificate of Occupancy registered as number 90, page 90 in volume 2005E, letter of rehabilitation and receipts of payment of all land charges, the 6th Respondent has successfully proved his ownership over the land in dispute.
Counsel for the 6th Respondent on the issue submitted that it has been decided in the case of IDUNDUN V OKUMAGBA (1976) 9-10 SC 227 that there are five ways by which a party can prove his title to land, inter alia, by presentation of documents of title over the land. Also in the case of NDILI V AKINSUMADE [2000] FWLR (Pt. 5) 750 @ 760, it was decided that a party must furnish sufficient and credible evidence to prove its title and to enable the Court exercise it discretion to grant declaratory relief, since on principle, declaration cannot be granted either on admission or default of pleadings. Counsel submitted that the 6th Respondent at the trial tendered his letter of rehabilitation, receipts of payment of all charges levied in the said letter of allocation as required by the terms of the contract and a duly registered Certificate of Occupancy which are credible and sufficient documentary evidence to enable the trial judge exercise discretion and upon which the trial judge judiciously exercised its discretion and declared the 6th Respondent and his wife the rightful owners of the land in dispute. It is trite law that Certificate of Occupancy confers legal interest on the holder and as such, the 6th Respondent upon collection of duly registered certificate of Occupancy has legal interest in the land in dispute as against the Appellant that has an equitable interest, whose contract with the 1st- 5th Respondent was only evidenced by letter of allocation, receipt of initial payment and part-payment of the revised development levy which led to automatic revocation of the allocation of the land in dispute to the Appellant. Learned counsel urged the Court to dismiss the appeal and to uphold the judgment of the lower court in its entirety
RESOLUTION OF ISSUES 5 & 6
The appellant was allocated the land by Lagos State Government subject to the performance of certain obligations. The Appellant failed in meeting the obligations. It was clearly stated in Exhibits C5 & C7 that failure to pay the development levy within the stipulated time period would lead to automatic withdrawal of the offer and forfeiture of the allocation. The Appellant saw this in the letters. They were actually written in capital letters and underlined. Having subjected himself to the terms by making part payment of the first levy, he failed to pay the remaining balance and the new increase. As far as Lagos State Government was concerned, this meant automatic withdrawal of the offer and the forfeiture of the allocation. The Appellant was given a long period to reconsider his refusal to pay the levy. As the appellant himself testified under cross-examination, it was only in 2005 that his name was replaced by another to whom the plot had been allocated. I am in agreement with learned counsel for the 1st – 5th Respondents that no enforceable right accrued to the Appellant until the land has been paid for in full, and other conditions attached to the allocation, such as the payment of capital development Levy etc, are fulfilled. Until these steps are taken, the contract between the Appellant and the 1st Respondent remained at the executory stage. Usually at such a stage, the Vendor retains the right to rescind the contract of sale and resell to another purchaser. I agree that the relevant provisions of the law as regards Revocation would not avail the Appellant, as the Right of Occupancy is yet to accrue to him. He has not been issued a certificate of occupancy neither has he acquired any right of occupancy over the land. Letter of allocation of a plot of land does not confer any right of occupancy. Until the conditions therein are satisfied, and the Certificate of Occupancy issued, as between the allottee and the grantor, title remains in the grantor. It was therefore not necessary to issue such notices as are required when certificates of occupancy or rights of occupancy are being revoked. All the appellant had was a letter of allocation. The Government has the power to withdraw a letter of allocation or declare it forfeited where the allottee fails to comply with the conditions in the letter. This was exactly what happened in the instant appeal. The Appellant admitted that he did not pay the balance of the levy in Exhibit C5 and also did not pay the levy imposed in Exhibit C7. There were many others who were willing to pay. The 1st – 5th Respondents after waiting on the Appellant to pay the levies to no avail, allocated the land to the 6th Respondent who had paid the relevant levies. The learned trial Judge was right in his conclusion that the Certificate of Occupancy Exhibit D3 issued to the 6th Respondent by the Lagos State Government satisfied all necessary requirements to sustain the 6th Respondent’s claim of ownership of the land in dispute. Issues 5 & 6 are resolved in favour of the Respondents and against the Appellant.
In the final result, I hold that this appeal lacks merit. It is hereby dismissed. The very well considered judgment of Abiru J (as he then was) of the High Court of Lagos State, Lagos Judicial Division in Suit No. LD/1340/2005 delivered on the 21st day of May 2007 is affirmed. I make no order as to costs.
JOSEPH SHAGBAOR IKYEGH, J.C.A.: The 1st respondent allocated the dispute plot of land to the appellant in writing. The allocation had preconditions attached to it. Exhibits C5 and C7 had stipulated in bold letters that the failure of the appellant to pay the development levy (which was one of the conditions attached to the allocation) within a stipulated time would attract automatic withdrawal of the offer and forfeiture of the allocation. The appellant breached the condition by defaulting to pay the development levy within the prescribed period.
It would appear that the appellant had not taken physical occupation of the plot of land before the 1st – 5th respondents ordered its forfeiture for the failure of the appellant to pay the development levy. If the appellant had taken possession of the plot of land upon its allocation to him by the 1st respondent he would have had an equitable interest in the plot of land capable of conversion into a legal estate.
Whilst the appellant’s case appears pathetic, the law does not seem to be on his side. For, the appellant had agreed to be bound by the precondition attached to the allocation in question. The appellant defaulted. The consequence of the default was forfeiture of the allocation which was enforced by the 1st – 5th respondents. It was an issue of the 1st – 5th respondents holding the appellant to his bargain. No more no less.
For these reasons and for the thorough reasons contained in the lead judgment of my learned brother, Eugenia Chinwe Iyizoba, J.C.A., which I had the honour of reading in advance and with which I agree, I too find no merit in the appeal and hereby dismiss it and abide by the consequential orders contained in the lead judgment.
RITA NOSAKHARE PEMU, J.C.A.: I had the advantage of reading in draft the lead Judgment just delivered by my brother CHINWE EUGENIA IYIZOBA J.C.A and I adopt her reasoning and conclusion as mine.
She has dealt exhaustively with the issues inherent in the Appeal, but I shall say a few words by way of emphasis.
It is apparent that the Respondents introduced Capital Development Levy as gleaned from Exhibits C5 and C7. These documents varied the terms of the original contract, to the knowledge of the Appellant.
He should have immediately protested, but he went ahead to further tie the hangman’s noose by making part payment of the levy as imposed by Exhibit C5. He cannot renege from the new terms, as he was obliged to comply fully with same.
I dismiss the appeal as lacking in merit and affirm the Judgment of Abiru J. (as he then was) in Suit No. LD/1340/2005 delivered on the 21st day of May, 2007.
I abide by the consequential order made that there shall be no order as to costs.
Appearances
S.A. Adeyemo Esq.For Appellant
AND
S.Y. kolawole (MRS) Director Civil Litigation, Ministry of Justice, Lagos with O.O Adeshina Esq. Snr State Counsel for the 1st – 5th Respondents.
Kunle Sofola Esq. for the 6th RespondentFor Respondent
