Bola Omoniyi V. Jacob Adegboyega Alabi (2003)

LawGlobal-Hub Lead Judgment Report

MURITALA AREMU OKUNOLA, J.C.A. 

This is an appeal against the decision of the High Court of Justice of Osun State, holden at Osogbo, presided over by Olowofoyeku, J. (as he then was) delivered on 3/3/97 dismissing the plaintiff’s claim. The appellant before this court was the plaintiff, while the respondent was the defendant.
The facts of this case briefly put were as follows:

The appellant in 1993, purchased from the respondent, a parcel of land, with four flats, completed building at Osogbo, for a sum of N350,000.00. The respondent and the agents of the appellant, jointly went and together, instructed a Barrister & Solicitor at Osogbo, to prepare a sale agreement, which was prepared and executed by the parties. The respondent, in addition, wrote letters to the tenants occupying the building, notifying them of the sale and transfer of the property to the appellant.

The respondent being resident at Osogbo, while the appellant was at Abuja, continued to collect rents and refused to obtain the consent of the Governor of Osun State, to assign the property as required by the Land Use Act.

Consequently, the appellant commenced this action seeking the following reliefs:
“1. An order of specific performance of an agreement between the plaintiff and the defendant, dated 9th October, 1993, for the sale by the defendant to the plaintiff of all that piece and parcel of land, measuring approximately 1332.005 square metres, with the building thereon consisting of 4 flats and one uncompleted flat, situate and lying and being at old Ikirun Road, covered by survey plan No. RAB/655/0Y/89.

2. An order directing the defendants to procure and tender to the plaintiff within thirty days from the date of  judgment, the consent of the Military Governor/Administrator of Osun State, with a view to register deed of assignment.

3. An order directing the defendant to give account of all monies received as rents on the plaintiff’s property from December, 1993, till the date of judgment.

4. An order of perpetual injunction, restraining the defendant by himself through his servants, agents or any person however, deriving authority from the defendant from dealing with or interfering with the plaintiff’s occupation and peaceful enjoyment of the property.”

Pleadings were filed and exchanged. Parties gave evidence and called witnesses, all of whom were cross-examined and the trial Judge was addressed. The defendant on his own side denied any contract of sale of his house to the plaintiff. His case was that he sought loan of N350,000.00 from Adebagbo, who operated a finance company and who originally was the 2nd defendant in this suit.

He was struck out of the case on the ground that no reliefs were claimed against him. He later became PW1 in this case. The defendant deposited with Mr. Adebagbo his plan and title papers as security for the loan.

The defendant did not know the plaintiff and had no business with him. When the money was ready, Mr. Adegbabo asked him to sign a document before he could take away the money. The defendant refused to sign the document, when he discovered that it was an agreement purporting to transfer his said house to the plaintiff for N350,000.00. But the defendant eventually had to sign the document and other as a result of the fraudulent misrepresentation from the said Mr. Adebagbo and one, Alhaja Abeke Babatunde PW2. They persuaded him to sign the documents relating to the transfer, which documents, as they represented would be destroyed, if he repaid the loan within the agreed period of three months.

When the respondent became suspicious of the transaction, he petitioned to the police against Mr. Adebagbo and Alhaja Abeke Babatunde and they were arrested by the police and charged to court for, inter alia, obtaining money under false pretences. The defendant refused to be bound by the purported sale of his house.

At the end of trial, the learned trial Judge delivered a considered judgment. In his judgment, the learned trial Judge dismissed the plaintiff’s case in its entirety holding that:
“(i) The defendant admitted under cross-examination that he graduated in B.S.C. (Accounting) at Ahmadu Bello University, in 1973 and as at all material times, a Manager at Osogbo Steel Rolling Company. He knew the content of exhibits A, C, C1 and E before he signed them. He signed the document only because he had been induced by some representation, concerning the loan he wanted and he reported to the police when he discovered fraud and misrepresentation for the purpose of the contract. Page 35.

(ii) It is difficult to say that he was naive and if his story is true as it did seem, then it must mean simply that on his part, the allure of the immediate procurement of the fund, he was seeking out-weighed the danger of the condition or consideration that attached to the release of the money he was seeking, which condition or consideration he with full advertence to their import, albeit recklessly or foolishly in the circumstances, decided to comply with, namely the signing of documents evidencing the sale of his property. Page 35 (sic).

(iii) If the defendant wanted to sell his house to satisfy his monetary needs surely an estate agent and not a finance company operator is what he needed … I believe the defendant’s evidence in this regard and find as a fact that the defendant… did not intend to sell his house that he never offered the house to Adebagbo for sale, that he deposited the title deeds and other documents pertaining to his house with Adebagbo as security for the loan he wanted from Adebagbo, who in any case, was a finance company operator and not an estate agent. Page 38

(iv) There is nothing to show that either of Adebagbo or Abeke Babatunde was involved in any conspiracy with Kunle Olaniyi to dupe the defendant and take away fraudulently, the N300,000 he borrowed. There is no evidence before the court to show that PW2 Madam Aduke Babatunde made any representation to the defendant both at the time the defendant was collecting the amount brought by her and before he signed exhibits A & E. Pages 34 -39.

(v) I believe as a fact that, the deposit of the title Deeds and other documents relevant to his house, at old Ikirun Road Osogbo, were made after a demand for them as security for the loan he wanted. Page 39.

(vi) In so far as the relationship is concerned, it seems more proximate to a situation in which Adebagbo was the agent of the absent plaintiff. Page 40.

(vii) … the fact that there had been a misrepresentation to the defendant about the document exhibits A & E which he signed as being security for a loan, which misrepresentation was made by Adebagbo whom from the facts I have found to be the agent of the plaintiff, I am unable to exercise my discretion to grant specific performance to the plaintiff in this case. Page 41.”

Dissatisfied with this judgment, the plaintiff (hereinafter referred to as the appellant) filed with the notice of appeal, 4 grounds of appeal to this honourable court. From the four grounds of appeal, the appellant formulated two issues for determination in this appeal, viz:
“1. Whether or not, on the totality of evidence before the court, a case of misrepresentation or fraudulent misrepresentation was established?
2. Whether the appellant was not entitled to the reliefs claimed in the statement of claim?”

The respondent also formulated two issues from the grounds of appeal, which but for framing and language used boil down to the two issues raised by the appellant in the appellant’s brief. These are:
“(i) Whether the learned trial Judge gave proper consideration to the oral and documentary evidence before him in arriving at his decision in this case.
(ii) Whether the trial Judge was right in refusing to grant specific performance claimed by the plaintiff.”

For purposes of this judgment, I shall use the appellant’s two issues which have incorporated the two issues in the respondent’s brief. Be that as it may, both learned Counsel to the parties, have filed their briefs of argument on behalf of their respective clients. On 12/5/03, when this appeal came before us for hearing, both learned Counsel to the parties, adopted and relied on their briefs and addressed us viva voce on behalf of their respective clients.

Learned Counsel to the appellant, Mr. Rowland Otaru, adopted and relied on the appellant’s brief filed herein on 22/6/99 and the appellant’s reply brief filed herein on 6/5/03. He commented that evidence of 3rd PW was not considered by the learned trial Judge.

He referred to pages 21-23 of the record. On issue raised by respondent at page 3 para. 5.8 of the respondent’s brief, he submitted that this issue was not raised nor joined at the trial court hence such issue should be discountenanced by the court. Learned Counsel urged the court to allow the appeal ad grant all the reliefs of the appellant at the lower court.

By way of reply, learned Counsel to the respondent, O. Akeredolu Esq., SAN leading Moji Olatunbosun Esq., adopted and relied on the respondent’s brief filed herein on 25/11/02, but deemed filed on 25/3/03. On paras. 5.8 of the respondent’s brief and evidence of PW3, the lawyer at pages 21-22 of the records mentioned by the appellant’s counsel, submitted that issues were joined on the credibility of counsel who backdated document and for that action the counsel was not entitled to any credibility. There is enough evidence on record to challenge the credibility of that counsel, who prepared document backdated and signed. Counsel submitted that the appellant’s reply brief was not filed within time as it was served on him that morning. He urged the court to discountenance same for this appeal.

Counsel finally urged the court to dismiss the appeal.
By way of further reply, learned Counsel to the appellant, Mr. Otaru, on the demand that the appellant’s reply brief be discountenanced, sought the court’s indulgence not to do so. This is because the reply brief was filed 3 clear days before today the day set down for the hearing pursuant to Order 6 Rule 5 of the Court of Appeal Rules, 2002. The issue of credibility of counsel was never raised learned Counsel stressed.

I shall now deal with the submissions of both learned Counsel to the parties orally and as contained in their respective briefs. On issue No.1 bordering on whether or not, on the totality of the evidence before the court, a case of misrepresentation was established, both learned Counsel to the parties made copious submissions.

Learned Counsel to the appellant submitted by way of summary on pages 411 of the appellant’s brief and paragraph 1.5.0 of the appellant’s reply brief as follows:
1. That the defendant/respondent was not entitled to lead evidence on the alleged fraudulent misrepresentation having failed to plead particulars of fraud and misrepresentation as required by the rules of court. On this failure evidence on the allegation of fraud and misrepresentation ought to and should have been disregarded.
2. That failure of the court to consider the evidence of PW3 of the court to consider the evidence of PW3, the counsel instructed by the respondent to prepare exhibits A & E showed that the court did not decide the case on the whole evidence before him and appellate court is competent to interfere with the trial court finding.
3. That if the Judge had considered the totality of the evidence before him he would have found that the story of the respondent particularly, the allegation of fraudulent misrepresentation was false, unreliable, illogical mere afterthought and a contrivance to pervert the course of justice.
4. That the trial Judge found as a fact that PW2 did not make any representation to the respondent.
5. That the evidence of the respondent was at variance with the document he freely executed when in law and equity, he was not entitled to set up a different transaction to that which he signed.
6. Finally, learned Counsel submitted that the learned trial Judge wrongfully decided the issue of fraudulent misrepresentation and wrongfully exercised his discretion on the case before him.

By way of reply, learned Counsel to the respondent submitted by way of summary on this issue on page 8 paragraph 8(iii) & (iv) that:
(i) The respondent established by evidence the fraudulent misrepresentation pleaded by him and the plaintiff’s contention that the pleadings lacked necessary particularity is untenable.
(ii) The proviso to section 132 of Evidence Act, 1990, evidence of fraud or any other matter to be led to prove invalidity of any document.

I have considered the submissions made by both learned Counsel to the parties on this issue vis-a-vis the evidence on record and the prevailing law. I am impressed by the arguments proffered by both learned Counsel, the totality of which was that learned Counsel to the appellant said there was no fraudulent misrepresentation on the respondent before exhibits A & E, C & C1 were made while the respondent’s counsel maintained there was. To determine which of the two arguments should be upheld, certain salient questions both from the evidence of the parties and the addresses must be asked and answered.

The questions are:
(1) Whether the defendant knew the contents of exhibits A & E before he signed them. From his testimony in the record of proceeding, the respondent said he signed exhibits A & E knowing that the documents transferred his ownership in the disputed property to another person in exchange for N350,000.00.Thus, it is clear that the respondent was not in doubt of the content and import of exhibits A & E where he signed them.

(2) What is the effect of the signature of the respondent on exhibits C1 & C2 vis-a-vis exhibits A & E.
In another development, the representatives of the plaintiff/appellant, according to the respondent in his evidence on record, took exhibits C1 & C2 to him which he signed knowing that the documents mandated another to collect rent on the disputed property which he had transferred to another person. The signing of exhibits C1 & C2 leaves no doubt in the mind of anybody that he freely divested himself of the ownership of his land and buildings therein when he signed exhibits A & E.

This finding is supported by the prevailing law in the land which stipulates that a literate person of full age and capacity at law is presumed to understand the document to which he appends his signature. He is in law deemed to be bound by whatever the document says. See Egbase v. Oriareghan (1985) 2 NWLR (Pt.10) 884 at 889. It is not open to such a literate person of full capacity to plead that the signature does not belong to him or that he was actuated by other motives as the respondent was saying in the instant case. See Chief & Mrs. Okoya v. Santili (1992) 4 NWLR (Pt. 338) 256 and Albion Canst. Co. Ltd. v. Rao Inv. & Property Ltd. (1992) 1 NWLR (Pt. 219) 583.

From the foregoing, can it be said that the respondent was misled into signing exhibits A & E? This point had been dealt with earlier on where the respondent said he knew the purport of exhibits A & E before he signed them. The only poser arising from this confirmation was where the respondent testified that before he signed the document, exhibits A & E, he knew that they purport to transfer his title and ownership of his land and buildings to another person who turned out to be the plaintiff. He added that he was persuaded to believe that the documents would be destroyed thereafter. It is here the issue of fraudulent misrepresentation was added to the signing of exhibits A & E, C1 & C2.

Two questions arise from this development, the two boil down to whether fraudulent misrepresentation had been proved and whether oral evidence can be used to vary or contradict a written document as the respondent sought to do in the instant appeal. This poser had come for determination and resolution by the courts in this country and in England to the effect that where the defendant alleged deceit, fraud or misrepresentation, he must establish by evidence that he has been misled by the statement of the plaintiff. That will be sufficient for a proof of fraud. See Derry v. Peck (1889) 14 AC 337 or (1886-90) All E-R; see also Alhaji Abdullahi Maradi v. Alhaji Sanda (1958) WRNLR 172 per Taylor J. In the instant case, the defendant having said he knew the purport of exhibits A & E before he signed same, cannot be heard to say that he was misled when he signed them.

However, on the allegation he later made in his evidence that he was persuaded to do so by some representatives of the buyer, who turned out to be the plaintiff raises another fundamental issue i.e. whether oral evidence can be used to vary or contradict a written document as the respondent sought to do in this case. This poser had been given statutory solution in section 132(1) of the Evidence Act, Cap. 112 to the effect that oral evidence is not admissible in proof of or to add to or in contradiction of a written document. This statutory provision was given judicial confirmation in Attorney-General Bendel State v. U.B.A. (1986) 4 NWLR (Pt. 37) 547, where it was held that a document tendered in court is the best proof of its content and no oral evidence will be allowed to discredit or contradict such document. See also Jiaza v. Bamgbose (1999) 7 NWLR (Pt.610) 182 at 197 where the apex court held per Ogundare JSC that extrinsic evidence is not admissible evidence in proof of title to land. See also K. Koiki v. B. Magnusson (1999) 5 SCNJ 296; (1999) 8 NWLR (Pt. 615) 492.

In the circumstance, evidence of the respondent which tended to contradict, discredit or detract from the written documents tendered in exhibits A & E by the plaintiff/appellant is inadmissible to debase the contents of exhibits A & E and C1 & C2. The holding of the trial Judge associating fraudulent misrepresentation with the appellant is neither based on evidence nor on law. The learned trial Judge came to a conclusion which in the instant case the appellate court should interfere with since the issue of fraudulent misrepresentation was not established by the respondent. In the circumstance, I resolve issue No.1 in favour of the appellant and against the respondent.

On issue two bordering on whether the appellant is not entitled to the relief claimed in the statement of claim both learned Counsel to the parties made copious submission on this issue in their briefs. The respondent specified the principal relief of the appellant as specific performance with which I agree.

Learned Counsel to the appellant by way of summary on page 14 paragraph 6.05-6.06 of the appellant’s brief submitted that the prevailing law is that once a valid contract has been made and breached between parties in a claim for specific performance, an order for specific performance should be made. Learned Counsel cited the case of Universal Vulcanising (Nig.) Ltd. v. Ijesha United Trading & Transportation Ltd. (1992) 9 NWLR (Pt. 266) 388 at pp.404-405. By way of reply, learned Counsel to the respondent submitted at page 8 paragraph 8.1(iv) & (v) that the proviso to S.132 of the Evidence Act permits evidence of fraud or any other matter to be led to prove invalidity of any document. On the issue of specific performance, learned Counsel submitted that on the state of the law and the facts established before the court, the trial court was right in refusing to order specific performance against the respondent.

I have considered the submissions of both learned Counsel to the parties vis-a-vis the records and the prevailing law. The learned Counsel to the appellant in summary submitted that the learned trial Judge was in error based on the facts and law before the court in refusing to grant specific performance while the learned Counsel to the respondent answered this question in the affirmative.

To determine which of the two submissions should be preferred there shall be a short recourse to the evidence surrounding the main document which is the focus of the whole transaction. There is the uncontroverted evidence that PW3 backdated exhibit A to 1977 to conform with the provision of the Land Use Act. This exhibit along with exhibits E, C1 & C2 were made the same time in 1993. Thus, if as given in evidence before the lower court that exhibit A was made in 1977, some twenty-six years ago, there is no doubt that exhibit A, the agreement for sale, has ceased to be enforceable being barred by the Limitation Act among other provisions which prevents the issue of a discretionary order of specific performance.

The purport of backdating exhibit A and made in 1993 to 1977, was to deceive the Governor as consenting officer that the document was made in 1977 before the Land Use Act, 1978. This incident of deceit in exhibit A, renders the document void for the purpose of obtaining the consent of the governor for the transaction. While it is trite that an agreement must exist before the deed seeking the consent of the governor in inserted, it is equally trite that the agreement on which basis the governor gives his consent should not be affected by fraud, deceit laches. In the instant case, I hold that exhibit A is unenforceable as an agreement as it seeks to deceive, same is also barred from being enforced in a court of law pursuant to the provision of Oyo State Statute of Limitation.

There is no doubt that the exhibit A relied upon for the application for an order of specific performance is bedevilled by deceit. One is therefore not surprised that the lower court restrained itself from exercising its discretion to grant specific performance. See International iles (Nig.) Ltd. v. Dr. A. Oyekanmi Aderemi & Ors. (1999) 6 SCNJ 46; (1999) 8 NWLR (Pt. 614) 268. I agree that for reasons stated in the judgment, the learned trial Judge was in order when it refused to grant an order of specific performance. In consequence, this issue is resolved in favour of the respondent and against the appellant.

In sum, the appeal succeeds in part and it is allowed. The judgment of the trial lower court is hereby set aside. In its place, the plaintiff/appellant’s claims are hereby granted N5,000.00 costs is hereby, granted in favour of the appellant.

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Other Citations: (2003)LCN/1451(CA)