Relationship Between Locus Standi And Jurisdiction (11)

Cont’d from last week

The basis of the 1st respondent’s claim was the non-performance of the relevant clauses of the agreement to assign. The 1st respondent based his complaint on the fact that the 2nd respondent did not put him in possession of the Sharada, Kano property in spite of repeated demands and this was because the 2nd respondent was legally incapable of doing so as the 2nd respondent had no rights in Counting Limited and he had falsely and fraudulently represented that he had the powers to do so. He claimed that the 2nd respondent misrepresented the fact of his title to the Sharada, Kano property.

During trial, the 1st respondent gave copious evidence in support of his claim on the Ikoyi, Lagos property. He tendered his certificate of occupancy, in respect of the property and it was admitted as exhibit “MMI”, under cross-examination, the 1st   respondent first conceded that he did not give the appellant consideration of N50,000.00 but later said that he gave him the N50,0000.00. he further stated that when he was taken to the Sharada, Kano property, it was not in occupation at the time of the transaction.

At the conclusion of trial, the trail court found in favour of the 10th respondent and dismissed the counter-claims of the appellant and the 2nd respondent. The trial court found that the agreement, exhibit “MM2”, did not contain details and particulars of the properties in dispute and that for that reason the agreement was invalid. Consequently, the court held that it was unable to find in the document an agreement to assign any land and it refused to interprete the provisions of the agreement. It held that since the claimant was in possession of the certificate of occupancy in respect of the Ikoyi, Lagos property which was still in his name, he had legal rights which were enforceable and therefore he was entitled to the declaration sought.

Aggrieved, the appellant appealed to the Court of Appeal. In determining the appeal, the Court of Appeal considered the provision of section 75 of the Evident Act which states thus: “75. 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”.

Held (Unanimously allowing the appeal in part)

1.         On duty on court in interpretation of written agreement, the court must confine itself to the plain words used therein. In the instant case, paragraphs 3 and 4 of exhibit “MM2” clearly showed the intention of each proposed assignor to pass legal title in the property so indicated to the proposed assignee. (Abalogu v. S.P.D.C. (Nig.) Ltd. (2003) 13 NWLR (Pt. 837) 308 referred to.) Pp. 31-32, paras, F-A)

2.         On Principles governing interpretation document-

The question of the interpretation of a document is a matter of law. One of the canons of interpretation is that the words used in a document must be given effect and that no word must be added or subtracted or ignored. The whole document must be considered in totality and not in isolation so as to ascertain the intention of the parties. (Afrotech Tech. Services (Nig.) Ltd v M.I.A. & Sons Ltd. (2000) 15 NWLR (Pt. 692) 730; Unilife Dev. Co. Ltd. V. Adeshingbin (2001) 2 NWLR (Pt. 1071) 378; Adetoun Oladeji (Nig.) Ltd v. Nigerian Breweries Plc. (2007) 5 NWLR (Pt, 1027) 415 referred to.) Pp. 34-35. Paras. G-A)

Per OGUNWUMIJU , J.C.A. at page 35, paras. A.D: “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 embodies in one document. The testimonies clauses 1, 4, 7 relate exclusively to the Ikoyi property while clauses 2, 3, 4, 6 relate exclusively to the Kano property. I did not glean an intention by the parties to barter or exchange one property for the other. Rather, it was two separate property transactions each with its own incidents and conditions. Since we cannot import the word ‘exchange’ into the agreement and there is a clear distinction between the terms of both contracts, I hold fast to the view that there are two agreements”.

3.         On Whether consideration need be adequate –

Consideration must be sufficient and it need not be adequate. In the instant case, the 1st respondent prevaricated on the issue of consideration. The prevarication supported the evidence of the 2nd respondent that the 1st respondent did not pay consideration for the Sharada, Kano property. (P.36, para. B).

4.         On Meaning of “barter”.

Barter means to exchange goods or services against something else without using money. In the instant case, the parties each sold their property for consideration with different attendant conditions. It was not trade by barter. (P.35, paras. D-E)

5.         On Obligation of contracting parties in respect of disclosure of information –

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 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. (P.36, paras …)

6.         On What amounts to misrepresentation –

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. In the instant case, the 2nd respondent did not fraudulently mispresent the state of affairs as it existed in relation to the Sharada, Kano property as at the time of executing exhibit “MM2”. Also, the failure of the 2nd respondent to carry out his intention did not amount to fraudulent misrepresentation. (Pp.36,paras. E-F; 43, paras. H)

Per OGUNWUMIJU, J. C. A. at pages 37 – 38, paras, A-A:

“Next, let us consider whether indeed from the totality of the evidence available to the lower court, the 2nd respondent fraudulently misrepresented some facts to the 1st respondent to allow the 1st respondent to rescind the contract. The 1st respondent claims that the 2nd respondent misrepresented the fact of his title to the Sharada property. Clauses 3, 5 and 6 of the agreement in exhibit MM2 are to the effect that the deed of assignment in respect of the Sharada Kano property would be executed by Counting Limited from whom the (2nd respondent) 1st party draws title and with the consent of the 1st party 2nd respondent in favour of Dalfam Ltd on behalf of the 1st respondent. Paragraph 5 describes with particularity the portion to be assigned to the 1st respondent. Perhaps paragraph 6 is the most significant in the circumstances. At the risk of being repetitious it is again set out below for ease of reference:

‘6’ That the 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 provision of clauses 3, 5 and 6 clearly show that the parties all understood that the 2nd respondent indicated the legal nature of the title which at that time vested in him to the extent that event though the 2nd respondent drew title from Counting Ltd, legal estate in the Sharada property was not vested in him but in Counting Ltd at the time of executing exhibit MM2 and all the necessary steps were to be taken in future to perfect the transfer of title from Counting Limited to the 1st respondent. In fact paragraph 7 shows that the 1st respondent was to take immediate possession. I have carefully read his evidence on oath and there is nothing in it to suggest that at anytime he was prevented from taking possession of the Sharada land in Kano. He said that the deed of assignment was not perfected and not that he was prevented from taking possession.

In my humble view the 2nd respondent did not fraudulently misrepresent the state of affairs as it existed in relation to the Sharada Kano property as at the time of executing exhibit MM2. Also the failure of the 2nd respondent to carry out his intention in paragraph 6 does not amount to fraudulent misrepresentation. We must remember that the appellant got whatever interests he has from the 2nd respondent.”

7.         On Types of misrepresentation and respective effect thereof –

There are various species of misrepresentation. Each type gives 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. In the instant case, the 1st respondent relied on fraudulent misrepresentation to rescind the whole agreement in exhibit “MM2”. (P.36, paras. E-E-F).

8.         On Nature of agreement which formalizes intention to convey title to land

An agreement which merely formalizes a proposed intention of the parties to devise title in respect of landed property has no more legal significance than an agreement to purchase land which is different from a conveyance or a deed of assignment. Such an agreement is to registrable  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. In the instant case, exhibit “MM2” was not an instrument of land transfer or an instrument intended to convey title to land. (Ogunjumo v. Ademolu (1995) 4 NWLR (Pt. 389) 254; Adesanya  v. Aderounmu (2000) 9 NWLR (Pt. 672) 370 referred to.) (P. 32, paras. A-C).