J.O.O. Imana V. Madam Jarin Robinson (1979)

LawGlobal-Hub Lead Judgment Report

A. N. ANIAGOLU, J.S.C. 

The defendant, who is the appellant in this appeal, by a Conveyance (tendered in evidence as Exhibit C and dated 12th October 1966), sold and conveyed a parcel of land, situate in Benin City, of which she alleged was seized “in fee simple in possession free from incumbrances”, to the plaintiff/respondent in consideration of a sum of ‘a3245. She described herself, in the Deed of Conveyance, as the “beneficial owner”.

The plaintiff proceeded to develop the land and to make improvements thereon in the course of which he was challenged by a third party (one Uwensuyi Edosomwan) who laid claim to title to the land a title which he later successfully established in court, leading to the dispossession of the plaintiff of the piece of land. The plaintiff in turn took action against the defendant claiming as follows:

“The Plaintiffs claim against the Defendant is for the sum of 2,066: 19:8pounds (Two thousand and sixtysix pounds, nineteen shillings and eight pence) and 100poundes (One hundred pounds) being special and general damages respectively for breach of covenants for title contained in and quiet enjoyment implied in a Deed of Conveyance dated 12/10/66 of a parcel of land and made between the Defendant , Madam J arin Robinson one part and the Plaintiff Josiah Oswald Omanigbuan Imana on the other part.

The said parcel of land situates in Ward 23L, Benin City within the Benin JudicIal Division.”

The case came for determination in the Benin High Court before Ogbobine, J. In a careful and particularly well considered judgement Ogbobine J. dealt with the issues of fact and law and entered judgement for the plaintiff against the defendant for special damages only, and costs.

From this judgement the defendant has appealed to this court and filed the following grounds of appeal:

“(1) The learned trial Judge erred in law holding

(i) that there had been breach of the implied covenant for title by the defendant/appellant in the circumstances of this case; or

(ii) that the judgement in Suit Number B/28/67 between Edosom wan and Imana constituted such a breach.

(2) The learned trial Judge misdirected himself on the doctrine of “Caveat Emptor” which is applicable to the circumstances of this case by holding that It was for the defendant/appellant to disclose defects in her title and not for plaintiff/respondent to investigate it when the claim for damages arose not out of “contract” but out of an “executed conveyance of land” .

“(3) The learned trial Judge misdirected himself in law as to the measure of damages in this case by allowing the plaintiff/respondent to recover more than “the purchase price” on the basis of total failure of consideration when he held thus: “I consider the proper course is to treat the purchase price and other expenses as standing in the same position and each as having been paid for a consideration which has wholly failed.”

(4) In view of his own apparent finding that the defendant/appellant was not in breach of the covenant for quiet enjoyment, the learned tria Judge erred in law when he nevertheless, held that the proper measure of damages is the total amount actually and reasonably expended by the plaintiff/respondent up to the date when the High Court declared that the land belonged to a third party; and (i) because, the adjudication being upon the breach of the implied covenant for title, or for total failure of consideration on account thereto , the breach and damage if at all, was complete upon the execution of the conveyance; or (ii) because it was not Proved or found that the total money so expended or claimed as special damage was reasonably incurred, or directly in consequence of the said breach of covenant or that it was with full notice to the defendant/appellant.

(5) The learned trial Judge erred in law (i) when he awarded as a specific head of special damage, the money advanced on those buildings or (ii) the value of improvements on the land as well as the expenses of those improvements; and (iii) in accepting and awarding as an item of special damage, an amount in excess of the “consideration” or sum shown on the face of the conveyance as the purchase price for the land” .