Chief Wale Taiwo V. Lagos State Government & Anor. (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

R. C. AGBO, J.C.A. (Delivering the Leading Judgment)

The appellant’s principal M/S Parkview Investment and Property Co. Ltd acquired interest in No. 30 Queens Drive Ikoyi, Lagos. It thereafter sought the consent of the Governor of Lagos State to the assignment pursuant to the provisions of the Land Use Act. Both the appellant and its grantors executed exhibit ‘F’ on 13th October, 1993 in favour of the Lagos State Government. Exhibit ‘F’ is titled Application for approval of a subsequent transaction to a grant of a Right of Occupancy.

Subsequent to the appellant and its grantors making exhibit ‘F’ the appellant deposited with the 1st respondent the sum of N900,000.00 deposit in relation to the approval fee. With the passage of Decree 52 of 1993 which purported to vest titles to land within 100 metres of 1967 shorelines, the appellant withdrew its application for the Governor’s consent and demanded a refund of the N900,000.00 deposit. The respondent refused and the appellant filed Suit No. Ld/2250/2000 demanding a refund of the said deposit of N900,000.00.

In its considered judgment, the trial court determined as follows:

“To my mind, Exhibit ‘F’ was issued by the defendants. It is an Application Form containing all the information and conditions to a Grant of the Governor’s Consent required, whereby the Grantor and the Grantee were informed about the deposit to be paid and the consequence of a withdrawal of the application as in this case. (See the caveat at the bottom of the front page of Exhibit ‘F’)

In Exhibit ‘F’, the Grantee (whom the plaintiff represents) has agreed to forfeit the whole or any portion thereof as the Chief Land Officer may decide, hence they signed the application form with the conditions. In my view, since the Chief Land officer did not state any portion of the deposit to be forfeited, it is presumed that the plaintiff has now forfeited the whole of the deposit paid.

Consequently, the plaintiff’s claim fail and the suit is hereby dismissed.”

Not satisfied with this judgment the appellant has filed this appeal. The notice of appeal contains the following grounds of appeal:

‘1. The learned trial judge having found that the defendants did not give evidence of forfeiture of any portion of the deposit made by the appellant pursuant to exhibit ‘F’, erred in law to have presumed that silence on the part of the defendants on the issue of the deposit meant ‘that the plaintiff has now forfeited the whole of the deposit paid’.

2. The learned trial judge erred in law to have presumed a forfeiture of the deposit made by the appellant on account of the silence of the Chief Land Officer as per the statement at the bottom of exhibit ‘F’ to wit:

“I am prepared within one week of demand to place on deposit at Government Treasury such amount as the Director of land Services (or such other officer as may be authorized from time to time) may consider sufficient to cover the approval fee for the above transaction. Should I withdraw the above application after making such deposit; I agree to forfeit the whole or such portion thereof as the Director of land Services or such other authorized officer may decided tendered before her, when such presumption is not cognizable under S. 114-131 of the Evidence Act of any other enactment or law.

3. The learned trial judge erred in law in dismissing the plaintiff’s claims, the plaintiff having proved his entitlement to the reliefs sought before her.
4. The judgment is against the weight of the evidence before the learned trial judge.”

From these grounds of appeal the appellant distilled 3 issues for determination in the appellant’s brief to wit:

“3.01. Whether or not the learned trial judge was right to presume that the appellant had forfeited the N900,000 deposit made to the respondent pursuant to exhibit ‘F’ tendered before the court.

3.02. Whether forfeiture of deposit made by the appellant to the respondents is automatic within the con of the forfeiture clause in exhibit ‘F’.

3.03. Whether the appellant s not entitled to judgment against the respondents as claimed on the writ.”