USMAN DANTATA JNR. v. MOUKTAR MOHAMMED & ANOR
(2011)LCN/4870(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 2nd day of November, 2011
CA/L/172/08
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
USMAN DANTATA JNR. Appellant(s)
AND
1. MOUKTAR MOHAMMED
2. ALHAJI MUKTAR AHMED MOHAMMED Respondent(s)
RATIO
WHETHER OR NOT THE COURT MUST CONFINE ITSELF TO THE WORDS USED IN A WRITTEN AGREEMENT
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) 6 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. PER OGUNWUMINJU, J.C.A.
THE FUNDAMENTAL PRINCIPLE OF FAIR HEARING
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. PER OGUNWUMINJU, J.C.A.
WHETHER OR NOT THE QUESTION OF INTERPRETATION OF A DOCUMENT IS A MATTER OF LAW
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 OGUNWUMINJU, J.C.A.
DEFINITION OF THE TERM “MISREPRESENTATION”
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 who fails to carry out his stated intention does not thereby make a misrepresentation See Wales v. Wadham (1977) 1 WLR 199). PER OGUNWUMINJU, J.C.A.
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 the Honourable Justice E. O. Williams-Dawodu on 21st February 2006 wherein the High Court granted some of the reliefs prayed for by the Claimant and possession of the property in dispute.
This case has had a chequered history. To appreciate some of the issues for determination, I must relate some of the background. On the 28th of November, 1980, the 1st Respondent and the Appellant entered into an agreement in which the 1st Respondent was to transfer his title and ownership of a piece of land at Ikoyi to the Appellant and the Appellant was to transfer ownership of a piece of land situate at Sharada Industrial Estate, Kano to the 1st Respondent. Each party was to pay the sum of N50,000.00 (Fifty Thousand Naira) only to the other.
The 1st Respondent put the Appellant in possession of the property at Ikoyi i.e Plot C, Turnbull now 1, Jabita Close Ikoyi, Lagos and also helped the Appellant obtain a loan from the Bank via his title document and his authorization but the Appellant had not been put by the 1st Respondent in possession of the land at Sharada Industrial Estate, Kano. Twelve years later, the 1st Respondent filed an action against the Appellant and his assignee the 2nd Respondent in this appeal.
This action concerning three friends was instituted on 27th April, 1992 by the 1st Respondent. The 1st Respondent filed a 21 Paragraph Statement of Claim on 26th November 1992 which is on Pages 9 to 14 of the records claiming five reliefs.
The Appellant filed a Statement of Defence at Pages 22-23 of the records while the 2nd Respondent filed a Statement of Defence and Counterclaim at Pages 36 to 39 of the records. Upon the conclusion of pleadings, the Appellant filed an application to dismiss the action on the basis that the Statement of Claim disclosed no reasonable cause of action, among other grounds. The learned Trial Judge, Akinsanya J., before whom the matter was initially listed agreed with the 1st Defendant/Appellant and dismissed the entire action.
Upon Appeal, the Court of Appeal found that only reliefs (a) and (b) disclosed reasonable cause of action but agreed with Akinsanya J. that all other reliefs (c), (d) and (e) be dismissed. On further Appeal, the Supreme Court on 5th May, 2000 (upon consideration of the facts pleaded in the Statement of Claim alone, as it then was and as it is usual in the nature of the application before the Court) held that all the reliefs (a) to (e) in the Statement of Claim disclose reasonable cause of action and directed accelerated trial at the High Court. The case started de novo and parties amended pleadings.
In a 22 Paragraph Amended Statement of Claim filed on 9th November 2001, the 1st Respondent 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 1st 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 1st Defendant entered into on the 28th day of November, 1980 on the ground of fraudulent misrepresentation 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 at 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 Honourable Court cause a survey of the portion to be Assigned to be made of 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 Road 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 on 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 Road Ikoyi (No. 1 Jabita Close, Ikoyi) in favour of the 2nd Defendant.
The 1st Respondent called two witnesses which consisted of himself and an estate valuer. The Learned Trial Judge upon 1st Respondent’s application granted the Appellant as (DW1) leave to give evidence by sworn affidavit in Kano in view of the state of his health. The 2nd Respondent gave evidence as DW2 at Pages 299 to 305 of the records. Both counsel addressed the Court at the conclusion of evidence. The Learned Trial Judge delivered Judgment on 21st February, 2006 at Pages 360 to 379 of the records, granting reliefs (a), (b), (e) and also (g) of the Claim and dismissing the entire counterclaim of the 1st and 2nd Defendants now Appellant and 2nd Respondent respectively.
Being dissatisfied with the judgment of the Learned Trial Judge, the Defendants each filed separate Notices of Appeal. The Appellant’s amended Notice of Appeal was filed on 16th May, 2011. This appeal is in respect of the appeal filed by the 1st Defendant who is now the Appellant while the Claimant at the lower court is now the 1st Respondent while the 2nd Defendant is now the 2nd Respondent. Issues were joined by the parties and briefs filed.
The Amended Appellant’s brief was dated and filed on 16th May, 2011. The 1st Respondent filed an amended brief on 11th May, 2011 which was deemed filed on 7th July, 2011. The 2nd Respondent having the same interest with the Appellant did not file any brief as a nominal party in this appeal and an Appellant in the sister appeal CA/L/172B/2008.
The issues for determination were identified by the Appellant and adopted by the 1st Respondent. I will also adopt issues 1-4 as couched. Issue 5 in my view is superflous and I will waste no time on it. This is because the learned trial judge did very little evaluation of evidence. The issues as adumbrated are set out below:-
1. Whether the Learned Trial Judge was right to have refused to construe and give effect to the Agreement between the Claimant and the 1st Defendant/Appellant (Exhibit ‘MM2′) and also have declared the Agreement invalid (Ground 1).
2. Whether the Learned Trial Judge correctly applied the decision of the Supreme Court in ALHAJI USMAN DANTATA 7 ANOR V MOUKTAR MOHHAMED (2001) 7 NWLR PART 664 AT PAGE 176 (GROUND 2).
3. 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 C Turnbull Road (now 1 Jabita Close), Ikoyi Lagos (ground 3).
4. Whether the Learned Trial Judge was right when she refused to grant the 1st Defendant/Appellant’s Counterclaim (GROUND 4).
5. Whether the judgment of the Learned Trial judge is against the weight of Evidence (GROUND 5).
ISSUE ONE
The first issue for determination is whether the learned trial judge was right to have refused to interpret and give effect to Exhibit MM2 the agreement between the Appellant and the 1st Respondent, and to declare the agreement invalid.
In the Amended Appellant’s brief settled by J. A. Badejo SAN, Learned Senior Counsel argued that 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 the respective 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 Senior Counsel conceded that Exhibit MM2 simply described the Property in Lagos as “piece of land situate of …. 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 fully dressed Deed of Assignment. It is an agreement by two friends to sell their respective Property. Both parties knew and were ad idem on the Properties 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 the Properties dealt with in Exhibit MM2.
Paragraphs 7,8,9, 10, 12, 14 and 25 of the Further Amended Statement of Defence and Counterclaim of the Appellant as 1st Defendant at Pages 319 to 323 of the records also particularized the Properties covered by Exhibit MM2 copiously.
Learned Senior 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. Senior 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.
Learned senior counsel argued that AUTA V. IBE (2003) 13 NWLR Pt.837 Pg 247 and MAKANJUOLA V. BALOGUN (1989) 3 NWLR Pt. 108 Pg 192 relied on by the learned trial judge are different from the circumstances of this case.
Learned Senior Counsel observed that since the 1st Respondent’s contention is that Exhibit MM2 is simply trade by barter while the Appellant and the 2nd Respondent contend that it contains two agreements to sell two distinct properties, the Learned trial judge should have considered and construed Exhibit MM2 in order to decide which of the contending views are correct. This is particularly as the interpretation of Exhibit MM2 is the basis of the parties’ contentions. He cited ONYEWEUZOR V OPUSUNJU (2002) 6 NWLR Pt. 762 P9.72 at Pg. 82. Counsel argued that this is not a case of declaration of title to land per se and the unchallenged evidence of the properties cannot be wished away. He cited ASAFIA FOODS FACTORY V. ALRAINE NIG LTD (2002) 12 NWLR Pt. 781 Pg 353 at Pg 375
Learned Senior Counsel then urged the Court to call in aid S.15 of the Court of Appeal Act and to interpret Exhibit MM2 and come to conclusions which the trial court could have reached by virtue of the evidence before it. Learned Senior Counsel submitted that Exhibit MM2 is an agreement for sale (not an outright assignment) which is clear and precise. It should be interpreted in its plain and natural meaning. Clauses 1 and 2 clearly state the consideration for each of the two properties. Clauses 3, 4 5, 6, 7 and 8 show the individual nature of the two transactions and laid down different procedure for the eventual execution of the separate Deeds of Assignment. He cited BLACKWOOD HODGE (NIG) PLC V. OMUNA CONSTRUCTION COMPANY LIMITED (2002) 12 NWLR Pt. 782 Pg 523 at Pg 534 paras C-H; UNION BANK V. OZIDI (1994) 3 NWLR Pt. 333 Pg 385 at 404; CHUKWUMA V. SHELL (1993) 4 NWLR Pt. 289 at Pg 512.
Senior Counsel also submitted that the relief sought by the 1st Respondent for rescission of the contract on the Ikoyi property does not necessarily flow from the breach of Exhibit MM2. None of the circumstances where restitution can be restored is applicable in this case. He cited ALAO V. INAOLAJI BUILDERS LIMITED (1990) 7 NWLR Pt. 160 Pg. 36; INNIH V. FERADO AGRO & CONSORTIUM LTD (1990) 5 NWLR pt. 152 Pg. 604; THE 28TH EDITION OF CHITTY ON CONTRACTS Vol. 1 at Pgs. 390 – 397, Paras 6.110, 6.112, 6.113, 6.114, 6.119, 6.123, 6.124 and 6.125 respectively and HALBURY’S LAWS OF ENGLAND, 4TH EDITION Pgs. 727 to 729 Paras 989 to 992.
Learned Senior Counsel further contended that the necessary parties to the Sharada transaction have not been joined as parties by the 1st Respondent. There is also no evidence that the 1st Respondent gave consideration. Nevertheless, the non-performance of the Sharada transaction is not enough to justify the rescission of the entire Agreement as contained in Exhibit MM2.
Senior Counsel argued that in this case, there is evidence that the Appellant had paid the consideration of N50,000, built on the Ikoyi Property with his resources and transferred interest to the 2nd Respondent. In such circumstance, rescission of this independent transaction cannot be justified in law and equity. As for the second transaction on the Sharada Property, there is nothing to rescind as the transaction has simply not been performed by the parties beginning with the 1st Respondent himself. The parties who were to perform the contract are also not before the Court. He cited DANTATA V DANTATA (2002) 4 NWLR Pt. 756 Pg. 144.
Senior counsel also submitted that Exhibit MM2 debunks any claim of fraudulent misrepresentation pleaded by the 1st Respondent and that fraud must be proved beyond reasonable doubt. He cited S.138 of the Evidence Act; UDOGWU V. OKI (1990) 5 NWLR Pt. 153 Pg 721; AFEGBAI V. A.G. EDO (2001) 14 NWLR Pt. 733 Pg 425
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 land 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 is enforceable or not. He cited the following cases: AKEREDOLU V. AKINREMI (1989) 9 NSCC 320; MAKANJUOLA V. BALOGUN (1989) 5 SC (1989) 3 NWLR Pt 108 Pg. 192; AUTA V. AFIA 6 WACA 216.
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 Senior 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.
I quite agree that the learned trial judge appreciated the fact that the claims of all the parties were 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, obligations 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 on agreement to assign any land and in that wise the question of its interpretation, will 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) of 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 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 (4) 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 Appellant and 1st Respondent 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) 6 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. I quite appreciate the argument of learned senior counsel for the 1st Respondent which seems to reflect the thinking of the learned trial judge. That is to query the inherent enforceability of Exhibit MM2 as an agreement for the sale of Land. Since the statute of frauds, any agreement for the sale land must be in writing. The specification of the property is a sine quo non to the validity of the contract. A fortiori the land to be sold must be clearly described or delineated in the agreement. In this case, there was very little description of the properties in the body of the agreement even the recitals in Exhibit MM2 referred to schedules 1 and 2 which form part of the agreement.
Schedules 1 and 2 were not tendered. Ordinarily by virtue of section 132 of the Evidence Act, oral evidence of the specifics of the property ought not to be admitted to add to the contents of Exhibit MM2. However, there are exceptions to the provisions of section 132 which allows oral evidence to be admissible to add to the contents of Exhibit MM2. In this case, the applicable exception is section 132 (a) which provides as follows:
“132 (1) When any judgment of any court or any other judicial or official proceedings, or any contract, or any grant or other disposition of property has been reduced to the form of a document or series of documents, no evidence may be given of such judgment or proceedings, or of the terms of such contract, grant or disposition of property except the document itself, or secondary evidence of its contents in cases in which secondary evidence is admissible under the provisions hereinbefore contained; nor may the contents of any such document be contradicted, altered, added to or varied by oral evidence:
Provided that any of the following matters may be proved –
(a) Fraud intimidation, illegality; want of due execution; the fact that it is wrongly dated; existence, or want or failure, of consideration; mistake in fact or law; want of capacity in any contracting party, or the capacity in which a contracting party acted when it is not inconsistent with the terms of the contract; or any other matter which, if proved, would produce any effect upon the validity of any document, or of any part of it, or which would entitle any person to any judgment, decree, or order relating thereto.”
Indeed, it can be seen that the oral evidence will be admissible if same would produce any effect on the validity of MM2 or of part of it or where it would entitle any person (any of the parties) to a judgment, decree or order relating to it. Clearly the reliance on the parties’ oral evidence will not only affect the validity of the document, it will also determine the entitlement of one of the parties to judgment. This portion of the sub section in my view supports the proposition that the oral evidence of the contents of the schedules is admissible since it is not admitted to contradict the agreement but to add to its validity.
As regard 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. Eng. Bayo Akinterinwa v. Cornelius Oladunjoye (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) 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 specifically mentioned the Sharada property and left no doubt as to the Properties dealt with in Exhibit MM2.
Paragraphs 7, 8,9, 10, 12, 14, and 25 of the Further Amended Statement of Defence and Counterclaim of the 1st Defendant/Appellant at pages 319 to 323 of the records also particularised the Properties covered by Exhibit MM2 copiously.
The 1st Respondent as (PW1) gave copious evidence in support of his claim on the Property that could leave no one in doubt as to the identity of the Property. He tendered a copy of the Certificate of Occupancy of the Ikoyi property as Exhibit MM1.
The sworn Affidavit evidence of the Appellant, 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 cases of Auta v. Ibe (2003) 13 NWLR Pt. 247 and Makanjuola v. Balogun cited relied on by the learned trial judge do not support the conclusion of the learned trial judge. In Auta v. Ibe (supra), 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 lead 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…”
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 Exhibit MM2 was tendered without objection by the 1st Respondent as 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 I 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 properties 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 S.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 agreements in respect of two properties 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 or 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 Appellant 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 6 of the agreement to assign. The 1st Respondent based his complaint on the fact that the Appellant had not put him in possession of the Sharada property in Kano inspite of repeated demands because the Appellant was legally incapable of doing so as the Appellant had no rights in Caunting 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 Appellant to the 1st Respondent. At this point we are here concerned with whether there has been non performance by the Appellant 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 Appellant that the 1st Respondent never paid consideration for the Sharada Kano property.
Consideration must be sufficient while it need not be adequate.
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 representee 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 who 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 Appellant fraudulently misrepresented some facts to the 1st Respondent to allow the 1st Respondent to rescind the contract.
The 1st Respondent claims that the Appellant 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 Caunting Limited “from whom the Appellant – 1st party draws title” and with the consent of the 1st party (Appellant) 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 repetitive it is again set out below for ease of reference.
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”.
Thus the provisions of clauses 3, 5 and 6 clearly show that the parties all understood that the Appellant indicated the legal nature of the title which at that time vested in the Appellant, to the extent that even though the Appellant drew title from Caunting Ltd, Legal Estate in the Shadara Property was not vested in him but in Caunting Ltd at the time of executing Exhibit MM2 and all the necessary steps now to be taken 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 any time 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 Appellant 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 Appellant to carry out his intention in paragraph 6 does not amount to fraudulent misrepresentation. The first issue is resolved in favour of the Appellant.
ISSUE TWO
Whether the learned trial judge correctly applied the decision of the Supreme Court in Alhaji Usman Dantata & Anor v. Mouktar Mohammed (2000) 1 NWLR Pt. 664 Pg.176.
Learned Senior counsel for the Appellant submitted that the decision of the Supreme Court in Dantata v. Mohammed that the 1st Respondent had a cause of action weighed heavily on the mind of the learned trial judge in arriving at the decision that the 1st Respondent was entitled to reliefs (a) (b) (c) and (g) as claimed. Learned senior counsel submitted further that such undue reliance by the learned trial judge is unjustified and baseless in law. Senior counsel argued that the judgment of the Supreme Court was confined to a consideration of the Statement of Claim (as it then was) and the issue of whether it disclosed a reasonable cause of action. He argued that the court should have adverted its mind to the effect of the amended pleadings before the Court and the evidence given all of which were not before the Supreme Court.
Learned Counsel for the 1st Respondent argued that the Learned Senior counsel for the Appellant deliberately quoted the learned trial judge out of con and that mention was made of the Supreme Court case only in passing while reiterating all previous events that had occurred in this case.
To get a good picture of what occurred at the trial court, one must set out some of the reasoning of the learned trial judge particularly at pg. 375-376 of the record. It is set out below:
“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 USMAN DANTATA V. MOUKTAR MOHAMMED (supra). It is from this position that 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 a case is upon the party who substantially asserted in the affirmative an issue and who would fail if no evidence were adduced. See the case of IMANA V. ROBINSON (1979) 3 – 4 SC1. Proof on preponderance of probabilities may be discharged when and where the party who asserts a fact proves that fact by relevant and necessary credible evidence.
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 MORENIKEJI V. ADEGBOSIN 2003 4 SC Pt.1 pt.144.
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 to agree with the Learned Senior Counsel for the Appellant that the decision of the Supreme Court weighed heavily on the mind of the learned trial judge. In fact it was that judgment that formed the basis of the Court’s opinion that the 1st Respondent had an enforceable legal right which entitled him to the declarations sought.
Notwithstanding the judgment of the Supreme Court in the interlocutory Appeal, it was the duty of the Court to evaluate the pleadings and the highlighted pieces of evidence before it, independently, in order to come to a conclusion whether to grant or refuse the declaratory reliefs sought by the Claimant. I was quite frankly unpleasantly amazed at the reasoning of the Learned Trial Judge. No evaluation or finding of fact was made in respect of the elaborate evidence led by both parties in respect of the competing claims. Let us remember that evidence had not been taken at the time the matter went before the Supreme Court. The Apex Court was only concerned with the contents of the Statement of Claim (as it then was). Ayoola JSC said at Page 197 Paras C to F of the report.
“.. Having considered the contents of the Statement of Claim, deemed to have been admitted, the question is whether the cause of action has some chance of success, notwithstanding that it may be weak or not likely to succeed…”. His Lordship proceeded, inter alia, in the next paragraph.
“… Although declaration is a discretionary remedy, the time to exercise a discretion whether to grant or refuse a declaration is upon a trial of the suit…”
Thus, the trial Court was expected to conduct a trial and decide the rights of the parties based on the pleadings and evidence to be adduced post the Supreme Court Judgment. There was no evaluation of the various Exhibits particularly Exhibit MM 2, and the evidence that even though the Appellant being in possession without legal title being conveyed still had an equitable interest which the court ought to take into consideration before arriving at its decision.
Indeed the hallmark of our jurisprudence is the duty of a judicial officer to dispense just and fair adjudication.
A trial judge has a duty to consider all the evidence adduced before him. See Oba Adebanjo Mafimisebi & Anor. v. Prince Macaulay Ehuwa & Ors (2007)1 SCNJ 258. Thus the trial judge was obliged and duty bound to consider the
evidence of all sides in a case concerning every material issue. See Rabiatu Adebayo v. Rasheed Shoge (2005) 2 SCNJ 60. With the greatest respect to the Learned trial judge, this duty was not performed in this case as most of the evidence and issues submitted for determination were ignored by the Learned trial judge because of the mindset that the Supreme Court judgment favoured the 1st respondent whereas the apex court took no decision on the merit as the trial court was obliged to do.
This issue is resolved in favour of the Appellant.
ISSUE THREE
Whether the Court was right when it 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 C Turnbull Road now 1 Jabita, Close, Ikoyi, Lagos.
Learned Senior Counsel for the Appellant reiterated his submission that the learned trail judge simply relied on Dantata v. Mohammed and on the fact that the 1st Respondent is in possession of the title deeds to that property to conclude that the 1st Respondent was entitled to the reliefs claimed. Counsel argued that the learned trial judge proceeded on the basis that production of title documents is one of the ways of proving title as laid down in Idundun v. Okumagba (1976) 9- 10 sc 140.
Learned senior counsel argued that the record reveals that the learned trial judge at Pg. 376 of the record found as follows:
“The claimant herein is still in possession of the Certificate of Occupancy Exhibit MM1 of 1979”
Learned senior counsel then argued that this finding is completely erroneous since the 1st Respondent and the Appellant both confirmed in their evidence on oath that the Certificate of Occupancy was in the possession of the Appellant having been handed over by the 1st Respondent.
Learned senior counsel further argued that even though the learned trial judge found the Appellant’s claim to payment of consideration of N50,000 unsubstantiated that finding was contrary to the evidence of both parties that the Appellant had paid the sum of N50,000.00 as consideration.
Learned senior counsel submitted that the Appellant had been put in immediate possession, repaid the 1st Respondent’s loan from the bank and secured the release of the title deeds from the Bank, took a mortgage and had constructed a building, lived in it and put the 2nd Respondent in possession. The 1st Respondent never paid back the Appellant both the money paid to get the title deeds released from the bank nor the loan secured to build the house. Learned senior counsel then submitted that it is inequitable for the court to simply hand over the property to the 1st Respondent in view of the facts before the court. Senior counsel also submitted that the cases of Egbuche v. Idigbo 11 NLR 140 and Emechetta v. Ogueri (1997) 8 NWLR Pt. 516 Pg.323 at 334 apply to this case. He also cited Eguamwense v. Amghizemwen (1993) 9 NWLR Pt. 315 Pg. 1 at Pg. 20; Ahuru v. Delta Steel Co. Ltd (1997) 3 NWLR Pt. 491 pg. 82.
Learned 1st Respondent’s counsel argued that it was undisputed during the trial that the certificate of occupancy – MM1 in respect of the Ikoyi property had always been in the name of the 1st Respondent who never divested his title. He submitted that once a party to an action in a land dispute admits of the original ownership of his opponent, the onus is on the former to prove that the later has been divested of his title. Counsel argued that the Appellant’s claim under equity cannot hold water as his conduct since the inception of the agreement was unconscionable. He failed to put the 1st Respondent in possession for 12 years despite repeated demands. He argued that this was so because the Appellant was never in a position to put the 1st Respondent in possession since he lacked the legal capacity to do so. He was never a shareholder or Director of the company who owns the title and never lead evidence of his own interest in the Sharada Kano land. The Appellant had expressly fraudulently represented himself as the owner of the 4 acres of land which he agreed to transfer to 1st Respondent.
Counsel further submitted that the latin maxim “nemo dat quod non habet” is applicable in this case as the Appellant could not give what he did not have. He cited Universal Vulcanising Nig. Ltd v. Ijesha United Trading Transport Co. Ltd (1992) 11-12 SCNJ Pt. 11 Pg.243 at 256; (1992) 9 NWLR Pt. 266 Pg. 388. 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 Respondents claims. The court relied on Idundun v. Okumagba (1976) 9-10SC 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 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 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 Adio v. Emmanuel Oyinwola & Ors (2000) 6 SCNJ 290.
I have already made a finding that no fraudulent intent or misrepresentation can be imputed to the Appellant by virtue of the provisions of Exhibit 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 Appellant 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 2nd Respondent 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 Appellant was ignored by the parties.
However the receipt of the purchase price by the 1st Respondent, coupled with delivery of possession by him to the appellant 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 Appellant and the 1st Respondent.
There is no where in which the 1st Respondent claimed that anyone prevented him from taking possession or delivery of possession was denied him by the Appellant or Caunting Nig. Ltd from whom the Appellant 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 Appellant. At pg. 267-268 of the Record, the Appellant 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 Appellant had no title to pass to him in respect of the Sharada Kano property that legal title was not passed to him within 10 years and he sued to rescind the contract for lack of performance. There is no doubt from the record that the evidence of the Appellant 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 Appellant 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 Caunting Nig. Ltd from whom the Appellant draws title and with whose consent the Appellant 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 Caunting Ltd got title by way of Certificate of Occupancy from the Kano State Government in 1986 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 Appellant. It was something to be done by the Ministry of Lands and Survey in Kano State. In the meantime the Appellant 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 Appellant, 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 Appellant 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 Appellant 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 Appellant 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 FOUR
Whether the learned trial judge was right when she refused to grant the Appellant’s counter-claim.
Learned senior counsel for the Appellant submitted that the learned trial judge treated the Appellant’s counter-claim and the 1st Respondent’s claim as mutually exclusive because the court summarily dismissed the counter-claim. He further argued that since the transaction on the Ikoyi property is consummated, what is left is the execution of a deed of assignment to complete the transfer as there is evidence of the third party interest of the 2nd Respondent. Counsel cited Odugoga v. Ricketts (1997) 7 NWLR Pt.511 Pg. 1 at Pg. 16; Doherty v. Ighodalo (1987) 11 NWLR Pt.530 Pg.594 at 703, and 22 of the Land Use Act.
Learned 1st Respondent counsel submitted in reply that it is not in dispute that a counter-claim is a separate and distinct action from the claimant’s claim.
However, in this case the subject matter in both cases is the Ikoyi property and having held the basis of the claim – Exhibit MM2, invalid, the court cannot put something on nothing by granting the reliefs in the counter- claim. He submitted that the decision of the trial court is strengthened by S.67 (1) of the property and conveyancing Law and Ogundalu v. Macjob (2006) 7 NWLR Pt. 978, Pg.148; Adeniji v. Onasoruwa (2000) 1 NWLR Pt. 539 Pg.1; Okuoja v. Ishola 1982 NSCC 280.
Counsel argued that the Appellant is not entitled to any equitable relief since he has not come to equity with clean hands. He argued that the Appellant is not entitled to the Ikoyi property having failed to deliver the Sharada property.
As I held in the earlier part of this judgment, the two agreements in respect of the two properties are distinct. I have also held that the equity of this case is clearly in favour of the Appellant given the peculiar facts of this case. There is no doubt that the Appellant by paying and taking possession has acquired an equitable interest which can be converted to a legal estate upon execution of the deed of assignment. Where a person is in possession under an agreement to assign land to him, he acquires an equitable interest in the land before assignment is completed following the maxim “equity regards as done what ought to be done” See Dr. N. A. Iragunima v. Rivers State Housing & Property Dev. & Ors (2003) 5 SCNJ 207.
Learned Appellant’s counsel had asked us to assume the jurisdiction of the court of first instance by determining this appeal based on the facts adduced by both parties at the trial court. To assume these powers under section 15 of the Court of Appeal Act, there are certain conditions precedent clearly spelt out in Honourable CHIEF MICHAEL DAPIALONG V. CHIEF DR. JOSHUA DARIYE & ANOR (2007) 4 SCNJ 286. Indeed it is the duty of this court to re-assess and reconsider evidence and apply its findings where the interests of justice so require except where such exercise affects the credibility of witnesses. see A.G. LEVENTIS V. CHIEF CHRISTIAN AKPAN (2007) 6 SCNJ 242; AGBAKOBA V. INEC (2008) 12 SCNJ 619. It is within the above con that I have considered this appeal and will make appropriate orders as the justice of the case demands.
The Appeal is allowed. The judgment of the trial court and the orders therein are hereby set aside. In the circumstances, it would be just and equitable to grant the two heads of the counter-claim of the Appellant particularly the alternative to A and alternative to B. I consequently make the followed orders.
(1) It is hereby ordered that the 1st Respondent shall forthwith execute a deed of assignment of the property at 1 Jabita Close in the name of the nominee of the Appellant that is the 2nd Respondent. Alternatively if the 1st Respondent shall refuse or neglect to execute the said deed of assignment within 30 days of this order, the Registrar of Titles Lagos State shall on being served with the order of this court effect a change of title to the name of the 2nd Respondent in respect of the property aforesaid
(2) It is also hereby directed that Caunting Ltd shall execute a deed of assignment of the portion of the property at 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/1ND/RC/82/111 in the name of the 1st Respondent or his nominee Dalfam Ltd.
(3) In the alternative if the said Caunting Ltd shall refuse 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 court cause all that portion of land delineated in the above stated Certificate of Occupancy be re-assigned to the 1st Respondent or his nominee Dalfam Nig. Ltd.
In the circumstances of this case, parties shall bear their own costs.
JOHN INYANG OKORO, J.C.A.: I was obliged in advance a copy of the very illuminating Judgment just delivered by my learned brother Ogunwumiju, JCA, which I agree completely with the views expressed and the conclusion reached on the salient issues submitted for the determination of this appeal. My learned brother has exhaustively and quite efficiently resolved the pertinent issues and I shall add a few words of mine only in support of the Judgment.
It is trite that in a case of declaration of right or title over land, the location, size and the boundaries must be described with certainty such that the parties are ad idem as to the identity of the land. See Auta v. Ibe (2003) 13 N.W.L.R. (pt.837) 247 at 269. It is important that the land, the subject matter of dispute must be ascertainable, else the court would not make an order over an unidentifiable parcel of land. Where the parties are ad idem as to the identity of the land in dispute, any argument that the identify of the land is unascertainable is skewed and puerile. See Makanjuola v. Balogun (1989) 3 N.W.L.R. (pt.108) 192 at 203.
In the instant appeal, although the schedule particularizing the two properties in Exhibit “MM2” is missing, the parties herein have pleaded, led sufficient evidence and are ad idem on the clear identities and location of the properties in contention. As I can glean from the processes filed, the issue in this matter is not that the properties are unascertainable, and there is no issue regarding this, but that Exhibit “MM2” had collapsed and that it is voided by breach and fraud.
Curiously, the learned trial Judge held that the properties in dispute are unascertainable but he made declaratory reliefs on the title in respect of the said “unidentified” lands. This could not be possible as you cannot put something on nothing. It is quite clear that the competing claims of the parties are based on Exhibit “MM2” and because the court below erroneously held that Exhibit “MM2” had failed it refrained from construing and interpreting the said document. The document cannot fail merely because the schedules to it were missing when the parties have in their pleadings supplied what the schedules (the identity of the land) contain.
For instance, paragraphs 3, 4 and 9 of the Amended Statement of Claim on pages 186-188 of the record of appeal describe the property in Ikoyi as being at Turnbull Road (now 1 Jabita Close) Ikoyi, Lagos. Paragraphs 8, 9, 10, 11, 12 and 15 of Amended Statement of Claim also describe the Sharada Property. The Amended Statement of Defence in paragraphs 7, 8, 9, 10, 12, 14 and 25 also describe these properties. Except we want to revert to the era of technicality, nobody is in doubt as to the properties referred to in Exhibit “MM2”.
I agree with my learned brother in the lead Judgment that this is a proper occasion which Section 15 of the Court of Appeal Act, 2004 should be invoked to consider Exhibit “MM2” which the court below failed to consider.
I strongly disagree with the suggestion by the learned counsel for the 1st Respondent that Exhibit “MM2” was trade by barter between the parties.
In trade by barter, goods or services are exchanged without the use of money. But in the instant case, as can be gleaned from Exhibit “MM2”, monies were to exchange hands in the two transactions. Each property was to change hands on payment of N50,000.00. So, the issue of barter is far removed from the transaction.
I hold a strong view that Exhibit “MM2” is still valid, subsisting and enforceable as there is nothing to show that there is any iota of misrepresentation or fraud. That being the case, the counter claim of the Appellant herein succeeds which in efficient is the enforcement of Exhibit “MM2”.
This appeal is, in my view, meritorious and is hereby allowed by me.
I abide by all the consequential orders made in the lead Judgment. I also agree that parties should bear their respective costs.
RITA NOSAKHARE PEMU, J.C.A.: I have read, before now, the judgment just delivered by my brother Judge HELEN MORENIKEJI OGUNWUMIJU J.C.A. I must say that I agree with the opinion and conclusions arrived at, she has indeed dealt with the issues in an indepth manner. I have nothing to add but to subscribe to the consequential order made in the lead judgment inclusive of the one as to costs.
Appearances
A. O. Owolabi with B. O. AkinyemiFor Appellant
AND
O. A. Olulowo – for the 1st Respondent.
B. A. Ayeni – for the 2nd Respondent.For Respondent
