Nigerian Cases on Leave to Appeal

“Leave” means permission. And it is settled law that, where no leave to appeal is obtained where one is required before appeal, such appeal is incompetent and is liable to be struck out. Below are some rationes decidendi on Leave to Appeal from Nigerian cases.

Meaning of Leave to Appeal

HON. ZAKAWANU I. GARUBA & ORS V. HON. EHI BRIGHT OMOKHODION & ORS (2011) 15 NWLR (Pt. 1269) 145 – Supreme Court

“leave” means permission. Before an appeal on grounds of mixed law and fact or on facts can be entertained by the Supreme Court, the applicant must seek and obtain leave from the Court of appeal or the Supreme Court. Failure to obtain leave renders the appeal incompetent and it will be thrown out. In the instant case, an examination of the grounds of appeal revealed that they were of mixed law and fact. Since leave was not obtained as required by the clear provisions of section 233(3) of the 1999 Constitution, the appeal was not valid. It was incompetent.

Instances where leave of court is not required

OYAKHIRE v. STATE (2006) LPELR-2863(SC)

“…The three authorities above cited by the learned Director of Public Prosecutions, no doubt, restated the general principle that leave is necessary to raise, on appeal before this court, an issue not raised at the courts below. But where however, appeal as of right is conferred on an appellant under the Constitution, he needs not obtain the leave of court. These are provided for in Section 233(2) of the 1999 Constitution.”

What a party must do on Required Leave to Appeal

TUNJI BOWAJE V. MOSES ADEDIWURA (1976) LCN/2290(SC)

Under the provisions of Section 31(2)(a) of the Supreme Court Act in a case where leave to appeal is required to be obtained, a party must not only file his application for leave to appeal within the period prescribed by the sub-section but must also file his notice and grounds of appeal, after  having obtained the leave, within the same period.

The appellant/plaintiff in the present case failed to file his notice and grounds of appeal within three months as he ought to do. The ground on which the appellant-plaintiff relies for asking this court to exercise its discretion under Section 31(4) of the Act for extension of time is, as we have indicated earlier on, that his failure to file his notice and grounds of appeal immediately after the court below had given him leave was due to inadvertence or negligence of the counsel who held brief for his counsel in the court below.   

This court would readily exercise its discretion to extend the periods prescribed for doing an act if it is shown to the satisfaction of the court that the failure by a party to do the act within the period prescribed was caused by the negligence or inadvertence of his counsel. (See T. A. Doherty & Anor v. R. A. Doherty (1964) 1 All NLR 299 and G.B.A. Akinyede v. The Appraiser (1971) 1 All NLR 162).

Effect of Failure to Obtain Required Leave

ROBERT I. IKWEKI & ORS. V. MR. JAMES EBELE & ANOR (2005) LLJR-SC

While discussing the need to obtain leave to appeal against an exercise of discretion in the grant of an adjournment, I must bear in mind that if an aggrieved person who requires leave to appeal fails to obtain such leave before bringing such appeal, the appeal is incompetent: See Yekini Onigbeden & Anor. v. Ishola Balogun & Anor. (1975) 1 All LR (Pt.1) 233; Tilbury Construction Co. Ltd. v. Ogunniyi (1988) 2 NWLR (Pt. 74) 64 and Nwadike v. Ibekwe (1987) 4 NWLR (Pt. 67) 718.

BABANGIDA IBRAHIM V. BATURE UMAR (2012) 7 NWLR (Pt. 1300) 507 – Court of Appeal

Where a party is mandated by the Rules of court to obtain leave of either the lower court or the appellate court before lodging an appeal against a certain class of the court’s decision, and he failed to obtain such leave, any notice of appeal filed by him in the absence of such leave shall be incompetent and liable to be struck out. (P. 528, paras. D-E)Per ORJI-ABADUA, J.C.A. at page 530, para. B:”There was no manifestation of procurement of the leave of either the lower tribunal or this court to file this appeal, and that alone endangered the sustenance of the appeal. The only natural consequence of such neglect is striking out of the process by the court for being incompetent.”

EHINLANWO v. OKE & ORS (2008) LPELR-1054(SC)

“It is settled law that, where no leave to appeal is obtained where one is required before appeal, such appeal is incompetent and is liable to be struck out.”

Proper Course After Appeal struck out for Failure to obtain Required Leave to Appeal

OPTIMUM CONSTRUCTION & PROPERTYDEVELOPMENT LIMITED V. AKE SHAREHOLDINGS LIMITED (2021) 18 NWLR (Pt. 1807) 148 – Supreme Court

Where an appeal is struck out for failure to seek and obtain leave to appeal where required, the proper course open to a party who desires to appeal, is to commence afresh the process of fulfilling the conditions precedent to filing a valid appeal, by applying for extension of time to seek leave to appeal, leave to appeal and extension of time to appeal under a new appeal number. There is no law prohibiting the prospective appellant from doing so.

Nigerian Cases on Privity of Contract

Can a third party enforce terms of a contract between two parties? This legal question borders on the doctrine of privity of contract. The rule states that a contract cannot confer enforceable rights or impose obligations arising under it on any person, except parties to it. Below are some rationes decidendi on Privity of Contract from Nigerian cases.

What is Privity of Contract?

NOSPETCO OIL AND GAS LTD. V. PRINCE MATILUKO EMMANUELOLORUNNIMBE & ORS (2022) 1 NWLR (Pt. 1812) 495 – Court of Appeal

privity of contract is the relation between the parties in a contract, which entitles them to sue each other, but prevents a third party from doing so. Thus, the doctrine of privity of contract is all about the sanctity of contract between the parties to it, and it does not extend to others from outside.

BASINCO MOTORS LIMITED V. WOERMANN-LINE & ANOR (2009) LLJR-SC

From the forgoing, it becomes really necessary to explain what is privity of contract. The doctrine of privity of contract portrays that as a general rule, a contract affects the parties thereto and cannot be enforced by or against a person who is not a party to it. In short only parties to a contract can sue or be sued on the contract and a stranger to a contract can neither sue or be sued on the contract even if the contract is made for his….him liable upon it.

Moreover the fact that a person who is a stranger to the consideration of a contract stands in such near relationship to the party from whom the consideration proceeds that he may be considered a party to the consideration does not entitle him to sue or be used upon the contract. Negbenebor v. Negbenebor 19711 ALL NLR 210. Ikpeazu v. A.C.B Ltd 1965 NMLR 374. K.S.O. Allied Products, Ltd. V. Kofo Trading Co. Ltd. (1996) 3 NWLR pt. 436 pg 244.

ADAMS O.IDUFUEKO V PFIZER PRODUCTS LIMITED & ANOR (2014) (2014) LCN/4268(SC)

This appellant’s argument does not take into consideration the simple doctrine of privity of contract, which is that a contract cannot, as a general rule, confer or impose obligations arising under it on any person, except the parties to it.

In other words, only the parties to a contract can sue or be sued on the contract; a stranger to a contract can neither sue nor be sued on the contract. See CHUKWUMA MAKWE v. NWUKOR & ANOR (2001) 14NWLR (pt 733) 356 also CHITTY ON CONTRACTS Vol. 1 para. 19.002 p. 961.

Operation of the Doctrine of Privity of Contract

VITAL INVESTMENT LIMITED v. CHEMICAL AND ALLIED PRODUCTS PLC (2022) 4 NWLR (Pt. 1820) 205 – Supreme Court

A contract cannot confer enforceable rights or impose obligations arising under it on any person, except parties to it and this is referred to as the doctrine of privity of contract which is to the effect that a contract is a private relationship between the parties who made it and no other person can acquire rights to or incur liabilities under it.

In the instant case, the Court of Appeal was right in holding that there was no evidence of a contractual relationship or privity of contract between the respondent and the finance company.

EYIBOH v. MUJADDADI & ORS (2021) LPELR-57110(SC)

“It is settled in law on privity of contract and firmly settled that a person is not under any obligation to bear the burden of a contract to which he is not privy, even though the contract is in his favour or benefit. Only a person who is a party to a contract can sue on it.

The reason for the enunciation of the principle of privity to a contract is based on consensus ad idem. It is only the contracting parties that know what their enforceable rights and obligations are, and therefore a stranger should not be saddled with the responsibility.

Thus, in L.S.D.P.C v N.C. & S.F. LTD (1992) (PT. 244)653 AT 669-670, this Court per Olatawura J.S.C held thus: “The evidence led justified this observation. Is there any privity of contract between the 1st appellant and the respondent? The answer is No. Privity of contract is a common law doctrine.

Generally only parties as to a contract can enforce the contract. This general principle is stated with great lucidity in Dunlop Pneumatic Tyre C. Ltd v. Selfridges & Co. Ltd. (1915) A-C. 847.”

Exceptions to the Rule of Privity of Contract

ADIREJE WEST AFRICA LTD (2017) LPELR-47142(CA)

“In the instant appeal the Appellant contends that he had no privity of contract with the Respondent and as such he had no locus standi to sue him. The Respondent argued that it comes under the exception to the general rule of privity of contract as he had a contractual relationship with the Appellant through PW2, the Appellant’s agent.

Having well stated the general position of the law, I will now through the eyes of the facts on record determine whether the case at hand falls within the exception to the privity of contract doctrine. I do agree with the learned senior counsel for the Respondent that there are exceptions to the general rule.

The said exceptions are well set out in HALSBURY’S LAWS OF ENGLAND, VOL. 9 4TH EDITION, PARAS 336, 339 AND 342. Relevant to the case at hand which is also part of our legal jurisprudence is para 336 of Halsbury’s Laws of England (supra). This exception relates to the case of an agency relationship between a party to the contract as the principal and a third party as an agent.”

First Fuels Limited V. The Vessel ‘leona Ii’ & Anor (2002) LLJR-SC

However, counsel for the defendants have argued that there are exceptions to the general rule and that this case falls within the exception. They cited authorities, which shall presently be considered, to support propositions they canvassed as follows:

Craddock Brothers v. Hunt (1923) 2 Ch 136, (Rectification may be ordered against a 3rd Party purchaser with notice); Thompson v. Whitmore (1843 – 60) All ER 698, (A volunteer (3rd Party) beneficiary can seek rectification of a settlement); Smith v. Lliffe (1875) LR 20 & 666 (The courts can rectify a contract made in pursuance of a court’s order); Anddersfiedl Banking Coy. v. Henry (1895) 2 Ch. 273. They also referred to a passage in Halsbury’s Laws of England (Vol. 16) 4th Edition para. 783 as follows:

The doctrine of trust applies also to contracts; and, where equity can spell out a contract made between A and B for the benefit of C, the construction that B intended to contract as trustee for C, even though nothing was said about any trust in the contract, C is a beneficiary under the contract and is allowed in equity to enforce it.

A proper understanding of the principle stated above would show that it does not admit of such wide application as counsel for the defendants would want to make it. The principle is hedged by qualifications. Footnote 1 to paragraph 783 of the work cited contained one such qualification as follows:

The contract must, however, show a clear intention to create a trust in favour of a third party. It is not legitimate to import into contract the idea of a trust when the parties have given no indication that such was their intention: Re Schebsman, ex p Official Receiver, Trustee v. Cargo Superintendents (London) Ltd. and Schebsman (1994) Ch 83 at 89, (1943) 1 All ER 768 at 770.

---

See also:

– Nigerian Cases on Approbation and Reprobation

– Nigerian Cases on Unchallenged Evidence

Nigerian Cases on Unchallenged Evidence

A piece of evidence given by a witness on a given point or subject matter or an issue may be said to stand “unchallenged” if there be no other evidence by the adversary on the same issue or subject-matter. Below are some rationes decidendi about Unchallenged Evidence from Nigerian cases.

Meaning of Unchallenged Evidence

FIRST BANK OF NIGERIA PLC v. ASSOCIATED MOTORS COMPANY (NIGERIA) LIMITED (1998) 10 NWLR (Pt. 570) 441 – Court of Appeal

A piece of evidence given by a witness on a given point or subject matter or an issue may be said to stand “unchallenged” if there be no other evidence by the adversary on the same issue or subject-matter. Once there are two conflicting versions of evidence on a given point there is a dispute on that point. One version of the evidence cannot be said to stand “unchallenged”

Do uncontroverted evidence and unchallenged evidence mean the same

OFORLETE v. STATE (2000) LPELR-2270(SC)

“… it does appear to me that a distinction has not always been drawn in the manner in which evidence is challenged or controverted. “unchallenged” and “uncontroverted” have mostly been used as meaning the same thing. See, for instance, Egbunike v. ACB Ltd (1995) 2 NWLR (Pt.375) 34 SC. In a strict sense “unchallenged” and uncontroverted” may not mean the same thing.

To challenge is to object or except to something or to put it in dispute or render doubtful. To controvert is to dispute or deny, oppose or contest. (For both definitions see Black ‘s Law Dictionary 6th Edition). Challenging witness is more appropriate in cross-examination while controverting his evidence is more appropriate in leading contrary evidence.

Notwithstanding the distinction, in most cases the consequence would be the same whether evidence is unchallenged or whether it is uncontroverted. Where evidence is challenged and rendered doubtful or without weight by cross-examination, the fact that it is not controverted by contrary evidence will not render it cogent or weighty.

On the other hand, the fact that contrary evidence has not been adduced to controvert the evidence of a witness on a particular matter weakens any suggestion that that evidence is not true.”

Effect of an unchallenged/uncontroverted evidence

IGHRERINIOVO v. S.C.C. NIGERIA LTD & ORS (2013) LPELR-20336(SC)

“It is the law that unchallenged evidence which is credible stands and should be accepted and acted upon by the Court. See: Omoregbe v. Lawani (1980) 3-4 SC 108, 117; Fasoro v. Beyioku & Ors. (1988) 2 NWLR (Pt.76) 263, 271;”

AUGUSTINE OBINECHE & ORS V. HUMPHREY AKUSOBI & ORS (2010) LCN/3790(SC)

Secondly, where evidence by a party to any proceedings was not challenged or controverted by the opposite party who had the opportunity to do so, it is always open to the court siezed of the case, to act on such unchallenged or uncontroverted evidence before it as the court below did in respect of the said evidence of the P.W.11 in the instant case.

There are too many decided authorities in this regard. See the cases of Nwabuoku v. Otteh (1961) 1 ANLR 487 @ 490, Odulaia v. Haddad (1973) 11 S.C 357; Nigerian Maritime Services Ltd v. Alhaji Bello Afolabi (1978) 2 S.C 79 @ 81; Isaac Omorogbe v. Daniel Lawani (1980) 3 – 4 S.C 108 @ 117; and Olohunde & anor. v. Prof Adeyoiu (2000) 6 SCNJ 470 @ 475 just to mention but a few.

AYINKE v. LAWAL & ORS (1994) LPELR-680(SC)

“Where evidence given by a party to any proceedings was not challenged by the opposite party who, like in the instant case, had the opportunity to do so, it is always open to the Court seised of the matter to act on such unchallenged evidence before it. See Isaac Omoregbe v. Daniel Lawani (1980) 3-4 S.C. J08 at 117, Odulaja v. Haddad (1973) 11 S.C. 357;”

Whether an Unchallenged Evidence is Admissible in all cases

LUFTHANSA GERMAN AIRLINES v. ROBERT ODIESE (2006) 7 NWLR (Pt. 978) 34 – Court of Appeal

The principle that unchallenged/uncontradicted evidence should be accepted by the court is not at large. Therefore, it is not in all cases that unchallenged evidence of a witness will be swallowed hook, line and sinker.

The requirement is that for such evidence to be accepted and relied on by the court, it has to be in line with the pleadings, cogent and credible. Thus, where evidence is unchallenged, if it is at variance with the pleadings, and not credible, it cannot form the basis of any decision that can be sustained.

In fact, even in situations where evidence of special damages will rest on the ipse dixit of the plaintiff, where it is not credible though unchallenged, the fact that it was not challenged will not improve its quality. Such unchallenged ipse dixit evidence is not an automatic proof of special damages.

Is a party who produces unchallenged and uncontroverted evidence automatically entitled to judgment?

ALHAJI ABDU USMAN MAIDARA v. ALHAJI SHEHU HALILU (2000) 13 NWLR (Pt. 684) 257 – Court of Appeal

It is not always the case that when a party produces unchallenged and uncontroverted evidence he is entitled to judgment. This is because unchallenged and uncontroverted evidence is not synonymous with prove by credible evidence. The unchallenged and uncontroverted evidence might be worthless or might fall far short of filting the imaginary scale in favour of a party tendering unchallenged and uncontroverted evidence.

---

See also:

– Nigerian cases on Condition Precedent

– Nigerian Cases on Approbation and Reprobation

Below are some rationes decidendi on Approbation and Reprobation from Nigerian cases. It is a settled principle of law in Nigeria that a party, counsel, witness or court is not allowed to approbate and reprobate simultaneously. That is to say, a party cannot approve and disapprove at the same time.

Meaning of Approbation and Reprobation

THOMAS WYATT AND SON (NORTH NIGERIA) LTD V. PLUMSTEAD INVESTMENT LIMITED (2019) 12 NWLR (Pt. 1687) 540 – Court of Appeal.

A person is not allowed in law to approbate and reprobate. As stated in the maxim: “quod approbo non reprobo” meaning “that which I approve, I cannot disapprove”.

EBEKE & ANOR v. EGWU & ORS (2020)LCN/14771(CA)

A party cannot be permitted to approbate and reprobate. They cannot on appeal, be permitted to canvass the opposite of the case freely stated by them at the trial.

NASKO & ANOR v. BELLO & ORS (2020) LPELR-52530(SC)

“…A party cannot approbate and reprobate at the same time. The Appellants cannot seek or ask for one thing at the lower Court and be asking for another incongruent, unparallel and impossible thing in this Court.

The Appellants had their prayer answered in the lower Court but are now seeking for a different proposition! One cannot eat his cake and have it back again. In other words, can the law permit him to blow hot and cold at the same time? Or, can he approbate and reprobate?”

Whether or not a party can Approbate and Reprobate

A.G. RIVERS STATE v. A.G. FEDERATION & ANOR (2022) LPELR-57708(SC)

“The parties agreed that this suit be heard on affidavit evidence. Agreements are meant to bind men of honour who reached and concurred in terms of the agreement.

It is in that regard that Section 169 of the Evidence Act, 2011 creates estoppel by conduct. In litigation, consistency is the rule. A party is not allowed to approbate and reprobate on one issue: COMPTROLLER GENERAL OF CUSTOMS & ORS v. GUSAU (2017) 4 SC (pt. Il) 123; (2017) 18 NWLR (pt. 1598) 363.”

B.B. APUGO & SONS LTD. V. ORTHOPAEDIC HOSPITALS MANAGEMENT BOARD (OHMB) (2016) 13 NWLR (Pt. 1529) 206 – Supreme Court

A party cannot approbate and reprobate on the same piece of evidence. In this case, the appellant tried unsuccessfully to persuade the trial court on the basis of exhibit J that it was an agent of Siemens AG.

Therefore, the appellant could not approbate and reprobate by arguing that the trial court ought not to have considered the document.

AJUWON & ORS v. GOVERNOR OF OYO STATE & ORS (2021)LCN/5134(SC)

Consistency is the rule of the game. A party is not allowed to approbate and reprobate on one issue: COMPTROLLER GENERAL OF CUSTOM & ORS v. GUSAU (2017) 4 SC (pt. II) 128; (2017) 18 NWLR (pt. 1598) 353 (SC).

No matter how powerful the client is or viable the brief, a counsel should always be worth his professional honour and pride to speak the truth and conduct the matter professionally. It is always right to follow the scripture and the teaching: what does it profit a man to gain the whole world and lose his soul?

Can Court, Counsel or Witness Approbate and Reprobate?

FRN v. IWEKA (2011) LPELR-9350(SC)

“This is in tandem with the settled principle of law that a court cannot approbate and reprobate at the same time.”

MUTTAKA BALA SULAIMAN v. ALL PROGRESSIVES CONGRESS (APC) & ORS (2023) 5 NWLR (Pt. 1877) 211 – Supreme Court

A litigant or counsel is not permitted to approbate and reprobate in the conduct of a case, even on appeal.

YUSUF V. OBASANJO (2005) 18 NWLR (Pt. 956) 96 – Court of Appeal

A witness is not entitled to approbate and reprobate.

---

See also:

– Nigerian cases on Breach of Contract

– Nigerian cases on Condition Precedent

Nigerian cases on Condition Precedent

A condition precedent is one which delays the vesting of a right until the happening of an event. Below are rationes decidendi on Condition precedent from Nigerian cases.

Meaning of condition Precedent

FEDERAL REPUBLIC OF NIGERIA V. HON. JUSTICE HYELADZIRA AJIYA NGANJIWA (2022) 17 NWLR (Pt. 1860) 407 – Supreme Court

A condition precedent is an additional formality super-imposed on the law. A condition precedent is one which delays the vesting of a right until the happening of an event.

In the instant case, a condition precedent for the criminal prosecution of the respondent was not followed by the appellant to imbue it with power and give the trial court the jurisdiction to prosecute the respondent. 

ATOLAGBE & ANOR V. AWUNI & ORS (1997) LLJR-SC

Both “condition” and “condition precedent” have been defined by Osborn’s Concise Law Dictionary, 7th Edition as follows:-

“Condition” – a provision which makes the existence of a right dependent on the happening of an event; the right is then conditional as opposed to an absolute right. A true condition is where the event on which the existence of the right depends is future and uncertain.” “A condition precedent” is one which delays the vesting of a right until the happening of an event.”

Use and Effect of the word ‘condition’ in contract

FGN & ORS v. ZEBRA ENERGY LTD (2002) LPELR-3172(SC)

“In Skips A/S Nordheim v. Syrian Petroleum Co. Ltd. (The Varenna) (1984) QB 599, 618 condition was described as “a chameleon like word which takes its meaning from its surroundings”.

Read in the context in which the word was used, “condition” was used in a non-technical sense to mean a term. That the word “condition” in a contract may be used in a technical or non-technical sense is illustrated by the case of Schuler A. G. v. Wickman Ltd. AC (1974) 235. In that case it was a “condition” of a four year distributorship agreement that the distributor should visit six named customers once a week.

The House of Lords held that the contract could not be rescinded merely because this term had been broken. It was said that the parties could not have intended the agreement to mean that a failure to make only one of an obligatory total of some 1,400 visits should have such drastic results, and that more probably they have used “condition” in a non-technical sense to mean simply a term (as in the phrase “conditions of sale”).

In Alfotrin v Attorney-General of the Federation (1996) 9 NWLR (Pt. 476) 634 at 656 – 7 the court used “condition” and “term” interchangeably. I hold that, read in context, the word “condition” used in the letter of offer was used in a non-technical sense to mean the terms of the contract.”

Effect of a Condition Precedent incorporated into an Agreement

TSOKWA OIL MARKETING CO. (NIG) LTD v. BANK OF THE NORTH LTD (2002) LLJR-SC

“It is trite law that once a condition precedent is incorporated into an agreement, that condition precedent must be fulfilled before the effect can flow. All conditions are (a) conditions precedent i.e. the sine qua non to getting the thing; or conditions subsequent, which keep and continue the thing (ibid).

As to when conditions are precedent or subsequent, see 30 Law Journal 686; Porter v. Shephard 6 T.B. 665, Cooper v. London, Brighton & Southern Railway 4 Ex. D88; Barnard v. Faber (1893) 1 Q.B.340, cited WARRANTY; Horrigan v. Horrigan (1904) 1 Ir. R.22, 271 (Stroud’s Judicial Dictionary Vol. 1 A – C page 538).

See also the case of Nigerian Bank for Commerce and Industry v. Integrated Gas (Nig.) Ltd. (1999) 8 NWLR (Pt.613) 119 at 127 G-H wherein Aderemi, J.C.A. held as follows: “By exhibits F and G, the parties have entered into what, in law, is a conditional contract, the condition precedent must happen before either party becomes bound by the contract. A condition must be fulfilled before the effect can follow.”

Effect of non-compliance with condition precedent

A.G & COMMISSIONER FOR JUSTICE, EDO STATE & ORS v. AGBONLAHOR (2022) LPELR-58257(CA)

Giving flesh to this provision, learned counsel for the respondent cited and relied on the statement of Ogunbiyi, JSC in the case of Yaki & Ors v. Bagudu & Ors (2015) vol. 249, LRCN P.1 at P.28 Ratio 29 that: “The general rule is, where condition precedent is mandatory for doing an act, the failure to fulfill that pre-condition will obviously render of non effect the doing of any act subsequent without first fulfilling the pre-condition.”

This case is no doubt appropriate to the facts in this appeal. This Court in the case of Wali & Ors. v. Ogiri & Ors. (2021) LPELR – 56272 (CA) held: “I wish to state that it is a settled principle of law, that where there exists a condition precedent to carry out a procedure, failure to fulfill the condition would mean that whatever, was done is a nullity.

BASIN DEV. AUTHORITY (2021) LPELR-56640(CA)

“What then is the effect of non-compliance with a condition precedent? The answer that readily comes to mind is that non-compliance by a person means not being legally empowered to institute an action before a Court of competent jurisdiction. Non-compliance will tantamount to not being legally empowered to institute an action.

The law is settled that you cannot put something on nothing and expect it to stay there. It will collapse. See MACFOY VS U.A.C LTD (1962) 152, MADUKOLU VS NKEMDILIM (1962) 2 SCNLR 341 and OKANGI & ANOR V. FATOBA & ORS (2011) LPELR-8786(CA).”

Effect of Condition Precedent in Court Process

NIGERIAN COMMUNICATIONS COMMISSION V. MOTOPHONE LTD. & ANOR (2019) 14 NWLR (Pt. 1691) 1 – Supreme Court

Once a legislation provides for a condition precedent before a court can exercise jurisdiction, the condition must be fulfilled subject to recognized exceptions. The suit would be incompetent if a court does not ensure that there is compliance with the condition precedent.

OKANGI V. FATOBA (2012) 7 NWLR (Pt. 1299) 266 – Court of Appeal

Non compliance with a condition precedent to instituting an action, means not being legally empowered to institute the action before a court of competent jurisdiction. In the instant case, the payment of N10,000 at the same time the necessary court processes were filed was a condition precedent to instituting the instant action and not a requirement as canvassed by counsel to the appellants.

It was a condition precedent before any person could successfully challenge such appointment. The appellants’ non-compliance with that condition precedent meant they were not legally empowered to institute the action.

---

See also:

– Nigerian cases on Breach of Contract

– Nigerian Cases on Extension of Time

Nigerian cases on Breach of Contract

Below are rationes decidendi on Breach of Contract from Nigerian cases. Breach of contract connotes that the party in breach acted contrary to the terms of the contract.

What is a Breach of Contract?

DAAR COMMUNICATIONS PLC v. MCKEE (2022) LPELR-57848(CA)

“It has been held that a breach of contract connotes that the party in breach acted contrary to the terms of the contract either by non-performance, or by performing the contract not in accordance with the terms or by a wrongful repudiation of the contract.” – Per HAMMA AKAWU BARKA, JCA (Pp 31 – 32 Paras F – A)

ECOSOLAR INTL LTD & ANOR v. RIVERBANK CAPITAL LTD (2020) LPELR-49594(CA)

“A breach of contract connotes that the party in breach had acted contrary to the terms of the contract either by non-performance or by performing the contract not in accordance with its terms or by a wrongful repudiation of the contract. A party who had performed the contract in consonance with its terms cannot be said to have been in breach thereof.” – Per UGOCHUKWU ANTHONY OGAKWU, JCA

BIMBA AGRO LIVESTOCK COMPANY LIMITED v. LANDMARK UNIVERSITY (2020) 15 NWLR (Pt. 1748) 465 (P. 498, paras. A-C)

The term breach of contract denotes a violation of a contractual obligation, either by failing to perform one’s own promise or by wantonly interfering with another party’s performance of the contract. A breach of contract may be occasioned by non-performance or by repudiation or both. Every breach of contract gives rise to a claim for damages, and may give rise to other remedies. Even if the injured party sustains no pecuniary loss or is unable to show such loss with sufficient certainty, he has, at least, a claim for nominal damages. If a court chooses to ignore a trifling departure, there is no breach and no claim arises.

Effect of Breach of Contract

BEST (NIG) LTD v. BLACKWOOD HODGE NIG LTD & ANOR (2011) LPELR-776(SC)

“Where a party to a contract is in breach of a material term of same, the breach gives the aggrieved party a lee-way or an excuse for non-performance of its own side of the bargain. Such a party is at liberty to treat the contract as extinguished or at an end. See: Yadis (Nig.) Ltd. v. G.N.I.C. Ltd. (2007) 14 NWLR (Pt.1055) 584 at 609.” – Per JOHN AFOLABI FABIYI, JSC (Pp 23 – 23 Paras B – C)

NATIONELE COMPUTER SERVICES LIMITED v. OYO STATE GOVERNMENT & ORS (2019)LCN/13569(CA)

The consequence of a breach of contract is award of damages. Damages for breach of contract are compensation to the Plaintiff for the damage, loss or injury suffered through that damage. The Appellant is therefore entitled to damages for the breach of contract by the Respondents. He is entitled to be placed in the same position as if the contract had been performed.

Difference between Breach of Contract and Breach of Trust

EDUN v. FEDERAL REPUBLIC OF NIGERIA (2019) 13 NWLR (Pt. 1689) 326 (Pp. 351-352, paras. G-B) – Supreme Court

A breach of contract, on one hand, is a violation of a contractual obligation by failing to perform one’s own promise under the contract by repudiation of the contract agreement. A breach of contract may be by non-performance, or by repudiation, or both. Each case gives rise to a civil claim either for damages, or some other remedies including specific performance. A breach of trust, on the other hand, occurs with the trustee’s violation of either the trust terms or the trustee’s fiduciary obligations. In the instant case, the appellants were not charged with the offence of criminal breach of trust which would have attracted a criminal sanction by virtue of section 311 of the Penal Code.

Award of Damages in Breach of contract

BIMBA AGRO LIVESTOCK COMPANY LIMITED v. LANDMARK UNIVERSITY (2020) 15 NWLR (Pt. 1748) 465 – Court of Appeal

Where two parties have made a contract which one of them has broken, the damages which the other party ought to receive in respect of such breach of contract should be such as may fairly and reasonably be considered arising naturally, that is, according to the usual course of things, from such breach of contract itself, or such as may reasonably be supposed to have been in the contemplation of both parties at the time they made the contract as the probable result of the breach of it.

In the contemplation of such a loss, there ought not to be claims which are merely speculative or sentimental, unless they are specially provided for by the terms of the contract. It is only in this connection that damages can be properly described as “special” in the conception of contractual awards. Damages normally recoverable are based on the normal and presumed consequences of the breach complained of. Thus, the terms “general” and “special” damages are normally inept in categorisation of damages for the purpose of awards in cases of breach of contract. Apart from damages naturally resulting from the breach, no other form of generaldamages can be contemplated.

Enertech Engr. Ltd. v. Alpha Praxis (Nig.) Ltd. (2015) 5 NWLR (Pt. 1452) 325 – Court of Appeal

The amount of general damages to be paid to a person for breach of contract is the amount it will entail to put the person in the position he would have been if there had not been any breach of contract. In other words, in cases of breach of contract, the aggrieved party is only entitled to recover such part of the loss actually resulting as was, at the time of the contract, reasonably foreseeable as liable to result from the breach. What was at that time reasonably so foreseeable depends on the knowledge then possessed by the parties or, at all events, by the party who later commits breach. Accordingly, the measure of damages in cases of breach of contract is in the terms of the loss which is reasonably within the contemplation of the parties at the time of the contract. In this case, the 1 st respondent paid N2.5 Million to the appellant. So, the moment the appellant defaulted, the 1 st respondent incurred some financial losses.

Remedies for a Breach of Contract

FORTE OIL PLC v. OGUNGBEMILE (2021)LCN/15017(CA)

The law is settled that where there is a breach of contract, the available remedy is in damages, see NWAOLISAH V. NWABUFOH (2011) LPELR-2115 (SC) where the Court held thus:

“In the consideration of remedies for breach of contract, the options open to a party to a valid contract is an action for damages in breach of the contract. Ben-Nelson (Nig.) Ltd. V. Moro Local Government, Kwara State (2006) 8 NWLR pt. 1037, pg. 623.” Per ADEKEYE, J.S.C ( P. 39, paras. D-E ). PER NIMPAR, J.C.A.

IGNATIUS ENWELU v. GIUMEX INVESTMENT LIMITED (2017)LCN/10512(CA)

It is trite that there are two remedies available for breach of contract of sale; one is an order of specific performance and the other, damages for breach of contract. The essence of damages in breach of contract cases is based on restitutio in integrum, that is, the amount of damages to be paid to the party wronged by the breach is the amount of damages necessary to put the party wronged and aggrieved in the position he would have been had there been no breach. – PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.

---

See also:

– Nigerian cases on assault and battery

– Nigerian cases on Extension of time

Nigerian Cases on Extension of Time

Below are rationes decidendi on Extension of Time from Nigerian cases. The granting of an extension of time is at the discretion of the court.

When Extension of Time can arise

NDP v. INEC (2012) 14 NWLR (Pt. 1319) 176

An extension of time can only arise where there is a time to be extended. In the instant case, the first time table had no legal effect to warrant an extension of time. In the instant case, the first time table published by the respondent had no legal effect to warrant extension of time.

Delay and Extension of Time

Okonji v. Njokanma (1989) 4 NWLR (Pt. 114) 161

A few days out of time for the doing of an act cannot amount to inordinate delay to preclude the granting of an extension of time by the court. In this case, the appellants were entitled to an extension of time as they were only five days out of time before seeking extension of time to file their brief and this did not amount to inordinate delay.

Extension of Time to Appeal

MR. VICTOR ADELEKAN V ECU-LINE NV (2006) Legalpedia (SC) 91710

“It is settled law that where an appeal requires leave of court and time within which to lodge the appeal has also expired as in the instant appeal, the intending appellant must, in seeking leave to appeal also pray for extension of time within which to appeal in addition to seeking extension of time within which to apply for leave and leave to appeal”. (Onnoghen JSC)

---

TOMPOLO v. FRN (2019) LPELR-47435(SC)

“In an application for extension of time to appeal, the applicant must explain the cause of the delay in appealing timeously and he must also show arguable and not frivolous grounds of appeal even though he is not required to show that his appeal will succeed. Mere showing of reasonable and good grounds of appeal is not sufficient. See Onyebuchi lroegbu & Anor v. Richard Okwordu & Anor (1990)NWLR (pt.159)643.

“By the provisions of Order 2 Rule 32 of Supreme Court Rules, where in an appeal to this Court from the Court of Appeal in which the Court below affirmed the findings of fact of the trial Court, an application to this Court in pursuance of the jurisdiction conferred to this Court under Section 233 (3) of the 1999 Constitution, leave to appeal must first be sought and obtained.

“It is instructive to note that this Court in a plethora or decided authorities, settled that any application for extension of time to seek leave to appeal and leave to appeal and for extension of time to file notice of appeal such as this instant application, the applicant must show substantial reasons for the delay and also show good cause why the appeal should be heard. In other words, besides showing the reasons for the delay, the applicant must also show that there is substance in the proposed grounds of appeal. These two conditions or requirements must be established simultaneously and must co-exist. SeeAparaku & Ors vs Idowu Alabi (1985)2 SC 329 at 330; Solanke v Somefun (1974)1 SC 141.

“Even at the risk of being repetitive, the two conditions to be satisfied are set out below: – (1) Good and substantial reasons for the applicant’s failure to appeal within the time or period stipulated by law, and (2) The grounds of appeal must prima facie show good cause why the appeal should be heard and determined. See Ukpe lbodo & Ors V Enarofia & Ors (1980) 5-7 SC 42; University of Lagos v Olaniyan (1985) 1 SC 295;

“Both conditions stated above must co-exist before Court can exercise its discretion to grant such application and where one condition is met or satisfied and the other is not, the application must be refused and dismissed. See Abubakar & Ors V Yar Adua & 5 Ors (2008)1 SCNJ 549.” – Per AMIRU SANUSI, JSC

---

ENYIBROS FOODS PROCESSING COMPANY LTD & ANOR V NIGERIAN DEPOSIT INSURANCE CORPORATION (2007) LCN/3819(SC)

In addition to the above principles of law relevant to a determination of an application for extension of time for leave to appeal etc, there is another very important principle that guides an appellate court when called upon to review, by way of appeal, the discretion exercised by the lower court in granting or refusing to grant an application of that nature.

The principle is that the attitude of appellate courts to the exercise of discretion by lower courts is not dissimilar to that adopted over the issue of findings of fact, which is that unless the exercise of discretion by a court of first instance or by a lower court is manifestly wrong, arbitrary, reckless or injudicious, an appellate court would not interfere merely because faced with similar circumstances it would have reacted differently. See University of Lagos v. Olaniyan supra at 163; Williams v.Mokwe (2005) 14 NWLR (Pt. 945) 249 at 269. – PER W. S. N. ONNOGHEN. J.S.C.

Court Discretion and Extension of Time

ENYIBROS FOODS PROCESSING COMPANY LTD & ANOR V NIGERIAN DEPOSIT INSURANCE CORPORATION (Ibid)

It is settled law that a grant or refusal of an application for extension of time within which to appeal involves the exercise of the discretion of the court before which the application depends and that the said application must be supported by an affidavit which must state sufficient reasons to explain the delay; it must contain the judgment or ruling of the court against which the applicant is seeking to appeal and the proposed grounds of appeal against such judgment or ruling.

It should, however, be noted that two instances of delay may be involved in an application for extension of time for leave to appeal which must be explained. These are: (a) the reason why the applicant could not appeal within the time statutorily allowed to appeal, and (b) the reason why the application was not filed earlier than the time it was filed after the time statutorily allowed for the applicant to appeal. – PER W. S. N. ONNOGHEN. J.S.C.

---

TUNJI BOWAJE V. MOSES ADEDIWURA 3PLR/1976/38 (SC)

“This court would readily exercise its discretion to extend the periods prescribed for doing an act if it is shown to the satisfaction of the court that the failure by a party to do the act within the period prescribed was caused by the negligence or inadvertence of his counsel.” Per Bello, JSC

---

See also:

• Nigerian cases on Assault and Battery
  –
• Nigerian cases on Abuse of Court Process

Nigerian Cases on Assault and Battery

Below are rationes decidendi on Assault and Battery from Nigerian Cases. Assault is unlawfully putting a person in fear of imminent harm. Battery is inflicting force on a person wrongfully. Assault is not the same as Battery, although they are very connected.

Meaning and Elements of Assault

KLM Royal Dutch Airlines v. Taher (2014) 3 NWLR (Pt. 1393) 137

Assault is the tort of acting intentionally, that is, with either general or specific intent, causing the reasonable apprehension of an immediate harmful or offensive contact. It is considered an intentional tort because Assault requires intent, as opposed to a tort of negligence. Actual ability to carry out the apprehended contact is not necessary. It need not involve actual contact. It only needs intent and the resulting apprehension.

Furthermore, a battery can occur without a preceding Assault, such as if a person is struck in the back of the head.

Three elements must be established in order to prove tortious Assault and these are: the plaintiff apprehended immediate (a) physical contact; the plaintiff had reasonable apprehension (b) (the requisite state of mind); and the defendant’s act of interference was intentional (the defendant intended the (c) resulting apprehensions).

Specific intent means that when the defendant acted, he or she intended to cause apprehension of a harmful or unwanted contact. General intent means that the defendant knew with substantial certainty that the action would put someone in apprehension of a harmful or unwanted contact. Assault can be justified in situations of self-defence or defence of a third party where the act was deemed reasonable. The focus for the purpose of determining whether a particular act is an Assault must be upon the reasonableness of the plaintiff’s reaction.

Meaning and Ingredient of Battery

Ndibe v. Ndibe (1998) 5 NWLR (Pt. 551) 632

The word “battery” in common law is a crime or a tort involving the actual (or negligent) use of unlawful physical force on a person without his consent. It includes even the slightest force; no actual harm need result. Consent, self defence, lawful and reasonable chastisement may be defences. In common usage “Assault” is often a synonym for battery, in law they are distinct.

---

Okekearu v. Tanko (2002) 15 NWLR (Pt. 791) 657

An act does not amount to a battery, unless it is done either intentionally or negligently. In this case, the amputation of the respondent’s finger was an intentional act done without the consent of either the respondent and or his guarantor. The appellant was thus liable in battery.

Assault and battery as a civil and criminal acts

FRSC & ORS v. AKPOS (2021)LCN/15014(CA)

“It is trite that assault and battery qualify as both criminal and tortuous acts. So it can arise in a criminal trial or civil claim in tort.” – Per YARGATA BYENCHIT NIMPAR, JCA

---

ESI v. CNPC/BGP INTERNATIONAL & ANOR (2014) LPELR-22807(CA)

“I am amazed that the learned trial judge has allowed the argument of learned Respondent’s counsel to becloud him to forget that assault can be both a civil and criminal wrong. Assault is a civil tort for which the aggrieved person is entitled to damages. Proof in civil matters is on a balance of probabilities.

“Assault or battery in civil matters involves inflicting some degree of force on a person negligently or intentionally. In this case, the Appellants claim that the 2nd Respondent pushed him out of his office and ordered mobile policemen to push him out of the camp. There is no evidence on record to contradict that statement of the Appellant.

“He claimed that by the act of the Respondents, he felt degraded, dehumanized and insulted in the presence of the other contractors. In this case, since none of the Respondents’ witnesses denied what occurred, the Appellant need only adduce minimal evidence which must be accepted by this court. See Egbunike & Anor. V. African Continental Bank Ltd. (1993) 2 NWLR Pt. 375 Pg. 34; Buraimoh v. Bamgbose (1989) 3 NWLR Pt. 109 Pg. 352.” – Per HELEN MORONKEJI OGUNWUMIJU, JCA

Proof of Assault and Battery

ADAMU v. IGP & ORS (2013) LPELR-22812(CA)

“For the Appellant to succeed in his claim for damages, it must be specifically pleaded and strictly proved. There is no doubt that the Appellant was assaulted, but for the Appellant to succeed in his claim for damages, he must have properly identified those who committed the tortuous act of assault and battery on him. He must identify the tortfeasors and the role each of them played in the alleged assault and damage to his property. See RANSOME – KUTI v. A. G. OF THE FEDERATION (1985) 2 NWLR (PT. 6) 211 at 221.” Per CHIOMA EGONDU NWOSU-IHEME, JCA

---

See also:

• Nigerian cases on Abuse of Court Process
  –
• Nigerian Cases on Misrepresentation

Nigerian Cases on Abuse of Court/Judicial Process

Abuse of Court Process is the improper or malicious use of the judicial process by one party to intimidate or harass the other and interfere with the administration of justice. It is the same thing as Abuse of Judicial Process. Below are some rationes decidendi on Abuse of Court Process in Nigerian Cases.

Meaning of Abuse of Court Process

CUSTOMARY COURT OF APPEAL BENUE STATE v. TSEGBA & ORS (2017) LPELR-44027(CA)

“Abuse of judicial process is an imprecise concept as it involves circumstances and situations of infinite variety and conditions. Its one common feature is the improper use of the judicial process by a party in litigation to harass, irritate and annoy the adversary and interfere with the administration of justice such as instituting different actions between the same parties simultaneously in different Courts even though on different grounds.

“The abuse consists in the intention, purpose and aim of irritation of the opponent and interference with administration of justice. The concept applies only to proceedings that are wanting in good faith. See Saraki v. Kotoye (1992) 9 NWLR (Pt. 264) 156, Ogoejeofo v. Ogoejeofo (2006) 3 NWLR (Pt. 966) 205 and Federal Republic of Nigeria v. Dairo (2015) 6 NWLR (Pt. 454) 141.” – Per JOSEPH EYO EKANEM, JCA

---

C.A. BANJO & ORS VS ETERNAL SACRED ORDER OF CHERUBIM AND SERAPHIM (1975) Legalpedia (SC) 01111

The term “abuse of the process of the court” connotes that the process of the court must be used only bona fide and not improperly as a means of vexation and oppression.-Per George B. A. Coker, JSC

What constitute an Abuse of Court Process

Sheriff v. PDP (2017) 14 NWLR (Pt. 1585) 212

Abuse of court process may lie in both a proper or improper use of the judicial process in litigation. But the employment of judicial process is only regarded generally as an abuse when a party improperly uses the issue of the judicial process to the irritation and annoyance of his opponent, and the efficient and effective administration of justice.

The terms “abuse of court process” and “abuse of judicial process” are one and the same thing. Abuse of court process simply means that the process of the court has not been used bona fide and properly. It also connotes the employment of judicial process by a party in improper use to the irritation and annoyance of his opponent and the efficient and effective administration of justice. It is a multiplicity of same action in same court or even before another court of courts being pursued simultaneously by the plaintiff as the case may be.

The claim(s) reliefs(s) may be worded differently but it still amounts to an abuse of process where the substance or the end result of the two or more actions is the same. Thus, where by the grant of one relief or claim in favour of the plaintiff the aim of the plaintiff would have been achieved, it will amount to an abuse of process if same question is placed before the same or another court. Therefore, where two courts are faced with substantially the same question, it is always desirable to be sure that the question is litigated before only one of the courts.

---

AJAOKUTA STEEL COMPANY LIMITED v GREENBAY INVESTMENT & SECURITIES LIMITED & ORS (2019) Legalpedia (SC) 11661

The common feature of abuse of Court process is the improper use of judicial process by a party in litigation the most common one being multiplicity of actions on the same issues between the same parties and instituting different actions between the same parties in different Courts.

Abuse of the process of the Court may also occur where two similar processes are deployed in the exercise of the same right as in the instant case. Abuse of the process of the Court, where it occurs, constitutes a fundamental defect the effect of which results in the dismissal of the abusive process. See Adesanoye V. Adewole (2000) 9 NWLR (PT 127) 671 and Umeh & Anor V. Iwu & Ors (2008) LPELR-3363 (SC).

Effect of Abuse of Court/Judicial Process

Nwosu v. P.D.P. (2018) 14 NWLR (Pt. 1640) 532

An abuse of court process constitutes a fundamental defect, the effect of which will lead to a dismissal of the process, which is abusive. In other words, once the court is satisfied that a proceeding before it amounts to an abuse of court process, it has the right to invoke its coercive powers to punish the party in abuse of its process, and quite often, that power is exercised by a dismissal of the action, which constitutes the abuse.

The court reserves the prerogative and the inherent jurisdiction to protect itself from an abuse of its process and any case which is an abuse must go under the hammer so as to halt the drift created by the abuse.

---

CENTRAL BANK OF NIGERIA v. SAIDU H. AHMED & ORS (2001) JELR 44242 (SC) or C.B.N. v. Ahmed (2001) 11 NWLR (Pt. 724) 369

Bearing in mind that a Court has a duty to intervene to stop an abuse of its process, it is in my humble view pertinent to refer to the observation of Nnaemeka-Agu, JSC in Arubo v. Aiyeleru (1993) 3 NWLR(Pt. 280) 126 at 142, where his Lordship said:

“Now inherent jurisdiction or power is a necessary adjunct of the powers conferred by the rules and is invoked by a Court of law to ensure that the machinery of justice is duly applied and properly lubricated and not abused.

“One most important head of such inherent powers is abuse of process, which simply means that the process of the courts must be used bona fide and properly and must not be abused. Once a court is satisfied that any proceeding before it is an abuse of process it has the power, indeed the duty, to dismiss it.

“See on this, Willis v. Earl of Beauchamp (1886) 11 probate 59. p. 63. It has been held in numerous cases that it is an abuse of process of the Court for a suitor to litigate again over an identical question which has already been decided against him even if the matter is not strictly res judicata. See Stephenson v. Gamett (1898) 1 QB 67, CA; also Spring Grove Services Limited v. Deane (1972) 116 S.J. 844.” – PER. EJIWUNMI, J.S.C

---

See also:

• Nigerian cases on Misrepresentation
  –
• Nigerian Cases on Interlocutory Injunction

Nigerian cases on Misrepresentation

Below are rationes on Misrepresentation from Nigerian Cases. Misrepresentation is the act of making a false or misleading statement about something, usually with the intent to deceive.

Meaning of Misrepresentation

ABBA v. ABBA AJI & ORS (2022) LPELR-56592(SC)

“The Court below had alluded to a misrepresentation of facts and the definition of misrepresentation would be of assistance here that is from Black’s Law Dictionary 9th Edition at page 1091 thus: “The act of making a false or misleading assertion about something usually with the intent to deceive, the words denotes not just written or spoken words but also any other conducts that amounts to a false assertion. (2) The assertion so made; an assertion that does not accord with the facts – also termed false representation …”

“Going by the above definition, a person is said to make a misrepresentation, if he makes an assertion which is false or misleading about something. In the case of AFEGBAI V. A.G. EDO STATE (2001) 7 SCNJ PAGE 438 AT 447, this Court held that whether there is misrepresentation, it is a question of fact and that misrepresentation can be proved in the following manner:- “First, the representation must be a statement of existing fact.

“Secondly, the representation must be material and unambiguous. Thirdly, the representee must show that he has acted in reliance on the misrepresentation.” – Per MARY UKAEGO PETER-ODILI, JSC

---

Durowaiye v. U.B.N. Plc (2015) 16 NWLR (Pt. 1484) 19

misrepresentation is the act of making a false or misleading statement about something, with the intent to deceive. The statement so made is an assertion which does not accord with facts.

---

ALHAJI FATAI ADEKUNLE TERIBA v. WALE ADEYEMO (2010) LCN/3803(SC)

“To constitute a misrepresentation, the misrepresentor and the misrepresentee must be distinct from one another. Thus, where a person who claims to have been deceived by a misrepresentation is in effect the same as the person who is alleged to have made it, then there is no misrepresentation in law. On this point see the English Case of ESSO PETROLEUM CO. LTD vs MAROON (1976) 2 ALL E.R.5. and Halsbury’s Laws of England Fourth Edition Vol. 31 Paragraph 703 at Page 443.” – Per FRANCIS FEDODE TABAI, JSC

Types of Misrepresentation

Mohammed v. Mohammed (2012) 11 NWLR (Pt. 1310) 1

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 1 st respondent relied on fraudulent misrepresentation to rescind the whole agreement in exhibit “MM2”. (P. 36, paras. E-F)8.On Nature of agreement which formalises 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 instantcase, exhibit “MM2” was not an instrument of land transfer or an instrument intended to convey title to land.

Burden of Prove in Misrepresentation

OLAOGUN & ORS v. BENSON (2021) LPELR-56210(CA)

“In law, to prove misrepresentation, the party so alleging must plead and prove the following elements constituting fraudulent misrepresentation, namely the representation must be a statement of existing facts, the representation must be material and unambiguous, and the representee must show that he has acted in reliance on the misrepresentation.

“The burden of alleging and proving that degree of falsity which is required for the representation to be a misrepresentation rests, in every case, on the party who sets it up. See Afegbai vs. AG., Edo State (2001) LPELR – 193 (SC). – Per MUHAMMAD IBRAHIM SIRAJO, JCA

Effect of Misrepresentation on a Transaction

Udogwu v. Oki (1990) 5 NWLR (Pt. 153) 721

The effect of misrepresentation on a transaction is that it entitles the injured person to avoid the transaction induced by the misrepresentation for example, in the case of a contract, to have it rescinded or to recover damages for the injury. It also gives rise to a defence to any action brought by the fraudulent party to enforce the contract or other transaction, but it does not make it void ab initio.

Misrepresentation being of no effect

FHOMO NIGERIA LIMITED v. ZENITH BANK PLC (2016)LCN/9238(CA)

Misrepresentation is simply the act of making a misleading assertion about something, it is therefore a false assertion. In an action alleging misrepresentation, the law requires the Appellant to prove that the Respondent made a false statement knowing it to be false, or reckless. In the absence of required evidence in proof of fraud or misrepresentation, parties are bound by the terms of the contract, see ATTORNEY-GENERAL OF NASARAWA STATE v. ATTORNEY GENERAL OF PLATEAU STATE (2012) LPELR-9730 (SC) where the Court held thus:

“Parties are bound by their contracts and it is not the duty of the Court to rewrite contracts for the parties. In the absence of fraud or misrepresentation the parties are bound by its terms.”

See also EGBASE v. ORIARGHAN (1985) NWLR (Pt. 10) 884 where the apex Court held:

“Whenever a man of full age and understanding who can read and write signs a legal document which is put before him for signature by which I mean a document which, it is apparent on the face of it, is intended to have legal consequences – then, if he does not take the trouble to read it, but signs it as it is, relying on the word of another as its character or content or effect, he cannot be heard to say that it is not his document.

By his conduct in signing it he has represented to all those whose hands it may come, that it is his document; once they act upon it as being his documents he cannot go back on it, and say it was a nullity from the beginning.” – PER YARGATA BYENCHIT NIMPAR, J.C.A.

---

See also:

• Nigerian cases on Interlocutory Injunction
  –
• Nigerian Cases on Alibi