Cakasa Nigeria Company Limited & Anor V. Mrs Felicia Omonike Aina & Anor (2016)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the judgment of B. A. OKE-LAWAL, J., of Lagos State High Court delivered on 19th June, 2013 in suit ID/1366/09.The 1st Respondent commenced the suit by way of Writ of Summons against the Appellants and 2nd Respondent as Defendants respectively for the following reliefs:

1. “A declaration that the Claimant is the one entitled to the grant of Certificate of Occupancy over the piece of land measuring Area (A) 1339.631 sq metres & (B) 2675..693 sq metres municipally situate at Ogundairo Bashorun Sunmonu Akanwo Village, Near Isolo State (sic).
2. An order of the Honourable Court putting the Claimant in exclusive possession of the piece of land measuring Area (A) 1339.631sq & (B) 2675.693 sq metres municipally situate at Ogundairo Bashorun State, having legally, exclusively and indisputably purchased same from the Defendants.
3. N30, 000,000.00 as special and general damages for trespass and malicious damage committed by the Defendants on the Claimant’s land.
4. Perpetual injunction restraining the defendants, their Agents and Assigns

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from further acts of trespass on the land subject matter of this suit.”

At the conclusion of trial, judgment was delivered in favour of the 1st Respondent and naturally aggrieved with the decision, the Appellants appealed vide a notice of appeal dated 15th August, 2013 and filed on same date.

The facts of this case seem undisputed. The 1st Respondent allegedly bought land from the 1st Appellant through the 2nd Respondent who purportedly acted pursuant to an unsigned Board Resolution of another company – Cashe Nigeria Limited. A receipt on the letter headed paper of the 1st Appellant was issued by the 2nd Respondent to the 1st Respondent. Also, a deed of assignment was executed by 1st Appellant and the Respondents respectively.

The 1st Respondent allegedly took possession and began construction on same before the Appellants intercepted the construction contending that it never gave the 2nd Respondent the authority to dispose, sell the property to the 1st Respondent. Briefs were filed and exchanged by the parties. The Appellants filed Brief of Argument is dated and filed 17th November, 2015 but deemed properly filed 12th February, 2016. Their Reply

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Brief is dated and filed 22nd February, 2016. The Briefs were settled by Olalekan Akinyemi of the Grace Akinyemi & Akinyemi chambers. Two issues were formulated in the Appellants’ Brief as follows:

1.”Whether the lower Court was right to have held that the 2nd Respondent can give what he does not have?

2. Whether the lower Court was right to have held that the unsigned board resolution of Cashe Nigeria Ltd is the board Resolution of the 1st Appellant as such binds the 1st Appellant.”

Oluropo Awoyele, Esq., of Oluropo Awoyele & Co. settled the 1st Respondent’s brief dated and filed 7th January 2016. Same is deemed properly filed 11th February, 2016 wherein the following issues were settled for determination thus:

1. “Whether the 1st Appellant can disown the 2nd Respondents act towards the 1st Respondent vis-a-vis the guiding principle of a disclosed principal and agent?
2. Whether the Appellants can hinge on technicality to defeat the Justice of this matter.”

Akinyemi Esq., of counsel submitted on behalf of the Appellants that a person cannot give what he does not have vide OLAGUNJI v YAHAYA [1992] 9 NWLR (pt 264) 156;

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POLO v OJOR [2003] 3 NWLR (PT 807) 358, C – E. He referred to Exhibit 1, the purchase receipt which was issued to 1st Respondent in his individual capacity and the contents of Exhibit 1 is clear and unambiguous as it is the document that gave rise to the purported sale transaction. That it is no other person but the 2nd Respondent, who is the chairman of the 1st Appellant. It is also the submission of counsel that the 2nd Respondent knew that he does not have any legal title in the land in dispute to transfer or assign to the 1st Respondent but misrepresented the true position of the landed property in dispute to the 1st Respondent who was also negligent in her dealings with the 2nd Respondent for failing to conduct a search. Counsel submitted that the evidence of the Respondents’ witnesses should have been rejected in their entirety. Citing ADENLE v OYEGBADE (1967) 1 NLR 136 at 139; ALLI v ALESHINLOYE (2000) 4 SCNJ 264 at 284; ONIGBEDE v BALOGUN (2002) 8 MJSC 177 at 187; ALADE v AWO (1975) 4 SC 215; KALIO v WOLUCHEM [1985] 1 NWLR (Pt 47) 616; MOGAJI v CADBURY [1985] 2 NWLR (PT 47) 616. It is also the submission of counsel that since the 1st Respondent is