MR. TARFA JOEL MAMAINA v. ALI IDRIS ZOAKA & ANOR
(2018)LCN/12036(CA)
In The Court of Appeal of Nigeria
On Friday, the 10th day of August, 2018
CA/YL/04/2018
RATIO
COURT AND PROCEDURE: WHETHER EXTRINSIC MATTER CAN BE IMPORTED INTO THE WRITTEN DOCUMENT
“However in the eye of the law it is the agreement reduced into writing that should be resorted to in the determination of issues arising from differences between the parties over that transaction. The Courts will not allow extrinsic matters to be imported into that written document in the determination of the rights and obligations of parties to it. That is the law. See: BFI Group Corp Vs. Bureau of Public Enterprises (2013) All FWLR (Pt. 676) 444; Akinbileje V. Oguntobade (2013) LPELR -21965 (CA) Osayogie Vs. Edokpayi (2014) LPELR-22661.” PER SAIDU TANKO HUSSAINI, J.C.A.
JUSTICES
OYEBISI FOLAYEMI OMOLEYE Justice of The Court of Appeal of Nigeria
JAMES SHEHU ABIRIYI Justice of The Court of Appeal of Nigeria
SAIDU TANKO HUSSAINI Justice of The Court of Appeal of Nigeria
Between
MR. TARFA JOEL MAMAINA Appellant(s)
AND
1. ALI IDRIS ZOAKA
2. MAHMUD DIKKO Respondent(s)
SAIDU TANKO HUSSAINI, J.C.A. (Delivering the Leading Judgment):
The High Court of Adamawa State sitting in Yola on the 4th October, 2017, delivered Judgment and granted the reliefs the 1st respondent as plaintiff had sought in Suit No. ADSY/50/2017 and further made an order (among others) for specific performance of the contract between him and the Appellant. Against this Order and Judgment of the trial High Court, hereinafter referred to as the ‘trial Court’ for short, the appeal was lodged to this Court vide the Notice of Appeal dated the 17th October, 2017. The Notice contain 10 (ten) Grounds of Appeal.
Facts giving rise to this appeal arose from what the 1st respondent had perceived was a breach of the contractual obligations owed him by the appellant.
The appellant, at all material times is a staff of the Federal Ministry of Works and Housing. By virtue of his employment and position he is entitled under the Federal Government owner/occupier scheme to a grant of offer of the ownership of the house he was occupying in the Ministry’s road side camp (House No. 53 Federal Ministry of Works and Housing, Yola). He had put up an application to that effect for the grant of an offer of a lease to that House/Property but before the grant was made, the Appellant by the document admitted in evidence as Exhibit ‘A’ sold the house or property to the 1st respondent for a consideration of the sum of N2,000,000 (Two Million Naira) only. This agreement was reduced into writing on the 11th April, 2013 and same was executed by the parties to it.
However the expected offer of grant in favour of the Appellant by the Federal Ministry of Works and Housing did not materialise until two years or more after the signing of the Agreement in Exhibit ‘A’ between the Appellant and the 1st respondent. When the expected offer was finally made, the appellant sought to renegotiate the sale of the House with the 1st respondent since, according to him (appellant) the value had appreciated. The 1st respondent and the appellant would not reach a compromise on a new price hence the appellant now sold the house/property to the 2nd respondent for N8,000,000.00 (Eight Million) naira. Irked by this unfolding developments, the 1st respondent approached the trial Court to seek redress in terms of the claims contained in the amended Writ of Summons and amended Statement of claim at pages 240 – 246 of the record of appeal.
After hearing the case to the end, the trial Court found in favour of the 1st respondent and ordered among others, specific performance of the contract/agreement covered by Exhibit ‘A’.
Before us in this appeal parties filed and exchanged their briefs of argument except the 2nd respondent who did not file any brief. The record of appeal had since been transmitted to this Court.
In the Appellant’s brief of argument dated and filed on the 22nd January, 2018, the Appellant formulated Four Issues for determination, namely:
1. Whether the 1st Respondent was in breach of the terms of the contract Agreement and as such not entitled to specific performance of the contract (arising from Grounds 1, 2, 3 and 4).
2. Whether the contract was void by reason of public policy and as such not enforceable (arising from Grounds 5, 6 and 7)
3. Whether on the preponderance of evidence and the balance of probabilities, the 1st Respondent proved his claim (Arising from Grounds 8 and 11).
4. Whether the reliefs granted including the award of N3,000,000.00 general damages and N1,000,000.00 cost were supported by the evidence (arising from Grounds 9 and 10)
The 1st respondent filed his brief on the 15th February, 2018 and at page 4 paragraph 3.1 thereof adopted the 4(four) issues raised in the appellant’s brief of argument. He proceeded thereafter to canvass his own argument in response.
The appellant filed a Reply brief upon the receipt of the respondent’s brief of argument. The reply brief dated the 23rd March, 2018, was filed the same day.
At the hearing of this appeal on 16th May, 2018, learned counsel respectively, adopted their briefs of argument. Mr. J. E. Owe learned appellant’s counsel, after adopting his brief of argument urged on the Court to allow the appeal and set aside the decision of the trial Court. Mr. Adikwu, learned counsel for the 1st respondent on his part, urged us to affirm the decision of the trial Court and dismiss the appeal.
As indicated before, the issues identified for the determination of Court are 4(four) in number. I will endeavour to address the four issues if need be, seriatim. Counsel for the respective parties have also addressed those issues in their briefs of argument. I will consider their submissions.
Issue No. 1
Whether the 1st Respondent was in breach of the terms of the contract of agreement and as such not entitled to specific performance of the contract. The issue is derived from Grounds 1, 2, 3 and 4 of the Grounds of Appeal.
In arguing this issue No. 1, learned appellant’s counsel did not mince words when he said that the 1st respondent was in breach of the terms of the oral agreement between him and the appellant who failed to secure the release of the letter of offer of grant of the property to the appellant within the two months agreed to by them. He argued that although this aspect of the agreement was not covered or included in Exhibit ‘A’, it is nonetheless a term agreed upon by them orally and same was a fundamental term. He argued that the transaction or agreement between the appellant and the 1st respondent was partly oral and partly written.
He argued further stating that the 1st respondent was in breach of this oral agreement hence he was not entitled to an order of specific performance made in his favour. He noted that time being the essence of the oral agreement, during which the 1st respondent was required to secure the release of the letter of grant, his failure to secure that letter within the 2 months prescribed, meant that he failed to fulfil his own obligation.
In the face of admitted facts as per the pleadings done by parties on both sides, learned counsel for the appellant wondered why the Court below would, in its Judgment, hold that there was no such agreement made orally and binding between the appellant and the 1st respondent which can be enforced against the latter. He urged us to so hold and furthermore, that the order of specific performance made at the trial Court was erroneous.
Putting aside the fact that the 1st respondent was in breach of the oral terms of the agreement, it is further argued that the agreement signed by the parties on the 11th April, 2013 was still not enforceable for being inconsistent with the letter of grant which prohibit the beneficiary of the grant from transferring, alienating or disposing by whatever manner, the House/property allocated to him. He argued further that the trial Court wrongly overlooked this aspect of the case canvassed by the appellant.
In arguing issue 1, learned respondent’s counsel insist that there was no such oral agreement between the appellant and the 1st respondent let alone the terms imputed on the 1st respondent to perform. The only agreement between them it is argued, is the written agreement dated and signed on 11th April, 2013.
It is further argued that, granted such an oral agreement was in existence, the trial Court was right to ignore same in the face of the agreement reduced into writing on the 11th April, 2013.
I have considered the submissions of counsel on both sides and the authorities cited by them on this point. What is not in dispute under this head of discourse, is the existence of a written agreement executed by the appellant and the 1st respondent on the 11th April, 2013. This is the document tendered and admitted at the trial Court as Exhibit ‘A’.
In relation to the oral side of the agreement, which the appellant has so much harped on, I think we need to look at the state of the pleadings of parties on both sides and to see if indeed there is any such thing as oral agreement upon which, as claimed, the parties also relied on in the transaction between them. I need to look at the state of the pleadings to see if the 1st respondent or his agent was indeed assigned with any duty of the nature ascribed to him, the failure of which led to the breach alleged against him.
A look through the 1st respondent’s Statement of claim at pages 242 – 246 of record of appeal, particularly the averment at paragraph 8 has it that:
8. The Plaintiff avers that the 1st Defendant and other beneficiaries of the scheme further agreed that Idris Kolo should go to Abuja on their behalf to pursue and facilitate the release of their lease letter and that since they don’t have the money for such journey the plaintiff should give them all a loan of one hundred and seventy thousand each to that effect.
See further: paragraphs 16 and 18 of the Statement of Claim at pages 244-245 of the record. Speaking on the same point, the appellant in the amended Statement of defence at pages 304-308 of the record averred at paragraphs 6 and 7 thereof of the Amended Statement of defence as follows:-
6. In answer to paragraph 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, and 19 of the amended Statement of claim, the defendant avers that the defendant did not transact the sale of the property in dispute for which the sales Agreement dated 11/4/2013 was made with the plaintiff as the defendant did not know the plaintiff and as Idris with whom the defendant transacted never mentioned the plaintiff. The defendant avers that pursuant to the said agreement between him and the said Mr. Idris, it was agreed as follows
(a) X x x x x x x x x x x x x x x x x x xx x x
(b) X x x x x x x x x x x x x x x x x x x xx x
(c) Mr. Idris shall secure the release of the letter of offer and other relevant title deeds in respect of the property from the Federal Government of Nigeria within two months.
(d) X x x x x x x x x x x x x x x x x x x x x x
(e) X x x x x x x x x x x x x x x x x x x x x x
7. In further answer to the Statement of claim, the defendant avers that the Agreement between the defendant and Mr. Idris was partly oral and partly written. The written agreement is dated 11/04/2013.
The defendant shall found and rely on the said Agreement.
11. In further answer to paragraph 6 and 11 of the Statement of claim the defendant avers that Mr. Idris was in breach of the sales Agreement by refusing to secure the release of the letter of offer and other title deeds in respect of the property, which he had promised that he would secure within two months. (words underlined for emphasis only).
It follows from the above extracts in the pleadings of both the appellant as the 1st defendant and the 1st respondent as the plaintiff, parties are/were agreed and were indeed ad idem over the point that one Idris (Kolo) (who turned out was the agent acting for the 1st respondent) would go ahead and secure the release of the letter of grant from the Federal Ministry of works and Housing in Abuja.
This is the aspect of the transaction between the appellant and the 1st respondent which the former has said was agreed upon verbally or orally. These facts are pleaded by parties on both sides and this being the case, there is a consensus between them that an appointed agent would pursue the release of the letter of offer of grant hence this fact cannot be wished away even if the same was not included or reflected in the contract document dated and signed between the parties on the 11th April, 2013 and tendered and admitted as exhibit ‘A’.
A state of affairs pleaded by one party and the existence of which is acknowledged by the party on the other side is deemed to be an admission of the existence of that state of affairs. A fact admitted need no further proof. See: Lewis & Peat Vs Akhimien (1976) 1 All NWLR 460; Atolagbe Vs. Shorun (1985) NWLR (Pt. 2) 360, 367; Mohammed Vs. State (2007) 4 SCNJ 177, 132.
It follows from my finding therefore, that the finding made at the trial Court that there was no agreement between the parties whether oral or verbal, cannot be right. By the printed record of appeal particularly the pleadings, the transaction between the parties is covered by both oral and written agreements.
However in the eye of the law it is the agreement reduced into writing that should be resorted to in the determination of issues arising from differences between the parties over that transaction. The Courts will not allow extrinsic matters to be imported into that written document in the determination of the rights and obligations of parties to it. That is the law. See: BFI Group Corp Vs. Bureau of Public Enterprises (2013) All FWLR (Pt. 676) 444; Akinbileje V. Oguntobade (2013) LPELR -21965 (CA) Osayogie Vs. Edokpayi (2014) LPELR-22661.
Section 128 of the Evidence Act provides thus:-
”128(1) When a Judgment of Court or any other judicial or official proceeding, contract or any grant or other disposition of property has been reduced to the form of a document or series of document, no evidence may be given or such judgment or proceeding or of the terms of such contract, grant or disposition of property except the document itself, or secondary evidence of its contents in cases in which secondary evidence is admissible under this Act, nor may the contents of any such document be contradicted, altered, added to or varied by oral evidence.
There is however a proviso to this Section 128(1) of the Evidence Act as itemized under (a) (b) (c) (d) and (e) of that Section. See Dauda Vs. Lagos B.I.C. Ltd (2012) All FWLR 380, 391-392; Green Finger Agro-Industries Enterprises Ltd Vs. Yusufu (2003) 12 NWLR (Pt. 835) 514; Muobike V. Nwigwe (2000)1 NWLR (Pt. 642) 620; UBA Ltd V. Ozigi (1994) 13 (NWLR (Pt. 333) 385; Solomon Vs. Magaji (1982) 11 SC. Paragraph (c) to the proviso to Section 128 (1) of the Evidence Act is on point particularly as the appellant has contended that the conditions precedent to the fulfilment or the discharge of the contract (Exhibit ‘A’) has not been met by the 1st respondent who failed to secure the release letter within the 2 months as agreed to by the parties orally or verbally. Proviso (c) to Section 128(1) of the Evidence Act provides that:
“(C) The existence of any separate oral agreement, constituting a condition precedent to the attaching of any obligation under any such contract, grant or disposition of property.”
The law requires of the person (as in the appellant) bringing his case within this proviso to prove the facts relied on by him. I have before now set out the various paragraphs in the Statement of claim and the Statement of defence where parties both acknowledge the existence of an oral agreement between them. This is no longer in doubt. It is by reason of this understanding made verbally, that the 1st respondent or his agent was required to secure the release of the letter of offer of grant in two (2) months. He did not meet the date line given to him.
This is the point the appellant sought to make in this appeal vis a vis the validity of the written agreement (Exhibit ‘A’) The contention has been that since the condition precedent required of the 1st respondent or his agent to meet had not been met, Exhibit ‘A’ could not be relied upon as a valid contract document upon which the rights and obligations of parties to it can be assessed and determined.
The apex Court in Jack V. Whyte (2001) 6 (NWLR (Pt. 209) 266, 277, 284 has held that although the Evidence Act at Section 132 (now Section 128) makes provisions for the exclusion of oral evidence by documentary evidence exceptions do exist whereby oral evidence may be admissible. Oral evidence is admissible where it will throw more light upon or assist the Court in determining the probative value to be attached to a document, in this case, Exhibit ‘A’, the written agreement between the appellant and the 1st Respondent.
See further, the decisions, in Udechukwu V. Ngene (1992) 8 NWLR (Pt. 261) 265; Ekpechi V. Owhundo (1988) 3 NWLR (Pt. 543) 618; Attorney General of Oyo State vs. Fairlakes Hotel Ltd (1989) 5 NWLR (Pt. 121) 255; Eholor Vs. Osayande (1992) 6 NWLR (Pt. 249)524. The 1st respondent or his agent was given the task viva voce to procure or secure the letter of grant of allocation paper to house/property at No. 53 Federal Ministry of Works and Housing, Yola. This document is an important one, at least to the parties, without which the agreement covered by Exhibit ?A? is useless or valueless. In that case oral evidence is admissible under paragraph C of Section 128(1) of the Evidence Act to throw light on the validity of Exhibit ‘A’.
I think this is consistent with logic, common sense and the law because a look at Exhibit ‘A’ indicate that the same was written and executed on the 11th April, 2013, at a time the house at No. 53 FMW&H/53/Yola, to which Exhibit ‘A’ relate, had not been allocated to the appellant neither had the appellant as at that date acquired any interest in the property in the sense that a grant had been made to him. It follows therefore that the appellant could not, by Exhibit ‘A’ make the transfer of any interest in or over property which has not been vested in him at that time. Such transaction covered by Exhibit ‘A’, that is, the agreement between Mr. Tarfa Joel Mamaina, the appellant herein and Ali Idris Zoaka, the 1st respondent herein is, in my opinion null and void ab initio, the subject matter of agreement, not having come into existence at that time. Here lies the futility of the order made at the trial Court compelling specific performance of the terms of the contract or agreement covered by Exhibit ‘A’.
See: International ile Ltd Vs. Aderemi (1999) 8 NWLR (Pt. 614) 268, 303; Mala Gadzama & Anor Vs. Garba Adamu (2014) LPELR-24363 (CA); Osho Vs. Foreign Finance, Governor of Mid Western State (1974) 10 SC 57, 288-289; Wuyah Vs. Jema’s Local Government (2011) LPELR -9078 (CA). It is common principle of law that one cannot convey what he does not possess. This is universally embedded in the maxim: nemo dat quod non habet.
The privy council in the case of Mcfoy Vs. UAC (1961) 2 All ER 1169, 1172 has held that: if any act is void, then it is in law a nullity. It is not only bad, but incurably bad. There is no need, for an order of the Court to set it aside. It is automatically null and void without more ado, though it is sometimes convenient to have the Court declare it to be so. And every proceeding which is founded on it also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse.
I will, on this note resolve issue No. 1 in favour of the appellant.
Having thus held as above, the question posed under Issue Nos. 2, 3 and 4 do no longer arise. They become otiose, uncalled for and therefore irrelevant.
But if I may say, albeit briefly in relation to issue No. 2 that Exhibit B1 (the letter of grant of leasehold interest, made to the Appellant), has by clause 1 thereof, read together with clause 13, prohibited the grantee of the interest thereto from alienating, transferring or disposing of any such interest as to amount to him relinquishing of his leasehold interest in the property. This is the Policy direction envisaged by the document (Exhibit B1) but which the parties, the appellant in particular, in ignoring same, put himself in an awkward position when he purported to, by Exhibit ‘A’, presented himself as the ‘owner’ of the property and ‘sold’ same to the 1st respondent contrary to the stipulations contained in Exhibit B1.
This appeal nonetheless succeeds. Same is allowed. The order issued at the trial Court compelling specific performance of the contract in Exhibit ‘A’ is set aside along with the Judgment. In its place is entered this Judgment dismissing the claim at the trial Court.
The 1st respondent is entitled to the refund of the sum of N1,000,000.00 he made as part payment to the appellant under the voided contract/agreement, Exhibit ‘A’.
Cost is assessed in the sum of N100,000.00 for the appellant and against the 1st respondent.
Ordered accordingly.
OYEBISI FOLAYEMI OMOLEYE, J.C.A.: I had the opportunity of reading the draft of the leading judgment, in this appeal, just rendered by my Learned Brother, Saidu Tanko Husaini, JCA.
I agree with His Lordship’s line of reasoning and the conclusion reached that this appeal is meritorious. Therefore, I also allow the appeal for the reasons succinctly stated in the said leading judgment and abide by the consequential orders made therein.
JAMES SHEHU ABIRIYI, J.C.A.: I agree.
Appearances:
J.E. Owe, Esq.For Appellant(s)
G.C. Adikwu, Esq. with him, H.P. Marcus Esq.- for 1st Respondents.
2nd Respondent unrepresented.For Respondent(s)
