Whether Consideration Needs To Be Adequate (II)

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,pflras. 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 propertyasat the time of executing exhibit “MM2”. Also, the failure of the 2nd respondent to carry out his intention did not amount to fraduleut misrepresentation. (Pp. 36, paras. E-F; 43, paras. H)

Per OGUNWUMUU, 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 151 respondent to allow the 151 respondent to rescind the contract. The I” 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) I” party draws title and with the consent of the I” party 2nd respondent in favour of Dalfam Ltd on behalf of the 1 st respondent.

Paragraph 5 describes with particularity the portion to be assigned to the pI 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 I” 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 even 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 151 respondent.

In fact paragraph 7 shows that the I” 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 oj 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 pi respondent relied on fraudulent misrepresentation to rescind the whole agreement in exhibit “MM2”.

(P.36,paras.E-F)

8. On Nature oj agreement which jormalises intention to convey title to land An agreement which merely formalises 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 a 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)

9.        On When identity of land in issue –

It is the duty of a claimant to prove clearly and unequivocally the precise area to which his claim relates. However, this duty does not arise if the defendant in his statement of defence does not dispute the identity of the property or the location of the property in dispute. The defendant must specifically make it an issue in his pleadings by disputing the area or location or features described by the claimant. In the instant case, the appellant in his amended statement of claim described the property in dispute in Ikoyi, Lagos. The amended statement of claim also specificially mentioned the Sharada, Kano property and left no doubt as to the properties dealt with in exhibit “MM2”. The

appellant’s further amended statement of defence and counter-claim copiously particularised the properties covered by exhibit “MM2”. The evidence on the properties also did not create any doubt that the parties were ad idem on the identities of the properties in contention. [Dada v. Dosunmu (2006) 18 NWLR (Pt. 1010) 134; Akinterinwa v. Oladunjoye (2000) 6 NWLR (Pt. 659) 92; Akpan v. Umoh (1999) 11 NWLR (Pt. 627) 349; badamosi v. Dairo (2007) 3 NWLR (Pt. 1021) 282 referred to.] (Pp. 32-33, paras. D-B)

10.       On Need to describe land in dispute with certainty in action for declaration of title to land –

In a case for declaration of any right or title over land, the land must be described with certainty so that the parties are ad idem as to its’ identity.

Once parties are ad idem, there can be no room for a finding that the identity of property in dispute is unascertainable. In the instant case, the action was for rescission of contract due to fraudulent

misrepresentation and not for declaration of title to land. [Auta v. Ibe (2003) 13 NWLR (Pt. 837) 247; Makanjuola v. Balogun (1989) 3 NWLR (Pt. 108) 192 referred to.] (P. 33, paras. C-F)

11. On Purport of decision in Idundun v. Okumagba (1976) 10 SC 227 –

The case of Idundun v. Okumagba (1976) 10 SC 227 deals with the five ways in which ownership of land can be proved and not with the ways of acquiring title to land. In other words, the case is about matters of evidence to be adduced or how to discharge the burden of proof rather and not about the substantive law on acquisition of title. The principles laid down in the case cannot be applied mechanically without recourse to facts before the court. [Adisa v. Oyinwola (2000) 10 NWLR (Pt. 674) 116 referred to.] (P. 42, paras. D-F)

12.On Whether vendor of land can retract from contract for sale of land after receiving consideration –

Where a party entered into an agreement with his eyes open and received consideration which he never returned to the other contracting party, equity will come in to stop him from retracting from the agreement. He cannot be allowed at that stage, having benefited, to refuse to give consideration to the other party by passing title of the property to him. [Dantata v. Dantata (2002) 4 NWLR (Pt. 756) 144; Okafor v. Soyemi (2001) 2 NWLR (Pt. 698) 465

referred to.] (Pp. 42-43, paras. F-B)

13.       On Conditions for successful plea of laches and acquiescence –

For the doctrine of laches and .acquiescence to succeed, it must be established that such laches and acquiescence amount to fraud. The elements which constitute such requisite fraud are:

(a)        the plaintiff (person) who set up the doctrine of laches and acquiescence must have made a mistake as to his legal rights;

(b)  such a plaintiff (person) must have expended some money or must have done some act on the faith of his mistaken belief;

(c)   the defendant, the possessor of the legal right, must also know of the existence of his own right which is inconsistent with the right claimed by the plaintiff, as doctrine of acquiescence is founded upon conduct with

knowledge of one’s legal rights;

(d)  the defendant, the possessor of the legal right, must know of the plaintiff’s mistaken belief of his rights;

(e)        the defendant, the possessor of the legal right, must have encouraged the plaintiff in his expenditure of money or in the other acts, which he has done either directly or by abstaining from ascertaining his legal rights.

[Kayode v. Odutola (2001) 11 NWLR (Pt. 725) 684

referred to.] (P. 43, paras. C-G).