James O. Jegede V. Madam Alimotu L. Giwa & Ors (1977)
LawGlobal-Hub Lead Judgment Report
In these proceedings which were commenced in the High Court of Lagos State, the plaintiff claimed against the defendants jointly and severally the sum of 1,500(pounds) (N3,000) being money paid to the defendants by the plaintiff on the 11th day of November, 1967, and expenses incurred by the plaintiff in respect of a consideration which has totally failed.
Paragraphs 2, 3, 4, 6 -17 of the plaintiff’s Statement of Claim read:-
“2.The plaintiff avers that by a purchase receipt dated the 11th day of November, 1967 the plaintiff paid to the defendants the sum of 800 (Eight Hundred Nigerian pounds) sterling as the full purchase price of the said land.
3.The plaintiff avers that under and by virtue of a Deed of Conveyance dated the 29th day of January, 1968 and registered as No. 38 at page 38 in Volume 1274 of the Lands Registry in Office at Lagos the defendants conveyed the said land to the plaintiff.
4.The plaintiff avers that immediately after the said sale the defendants put the plaintiff in possession and the plaintiff planted thereon a board boldly written in his name.
5.Immediately after the execution of the Deed of Conveyance and being put in possession the plaintiff made a building plan of the land which plan was approved by L.E.D.B.
6.That on a visit to the land the plaintiff discovered that the signboard had been removed and a mechanic was on the land repairing motors thereon.
7.The plaintiff immediately reported to the defendants who advised the plaintiff to take action against the mechanic as the land belongs to them (the defendants).
8.The plaintiff avers that he took an action for trespass against the mechanic in Magistrate Court where it turned out that one Ademola Odunsi put the mechanic on the land the case for trespass was withdrawn as title was in issue between the plaintiff and the said Ademola Odunsi.
9.The plaintiff avers that he quickly reported this to the defendants who told him to take action for title against the said Ademola Odunsi as they were sure the land forms portion of their land, which plaintiff did; Suit No. LD/294/70 refers.
10.That during this case in court one Ademola Odunsi and one Adudul Wahab Agbomobini applied to the Lands Registry for registration of title of the land in moiety and this was quickly brought to the knowledge of the defendants who told the plaintiff to file an objection which the plaintiff did vide his letter dated 24th March, 1970.
11.That long before the action at Magistrate’s Court the mechanic was sued for trespass at Grade ‘B’ where the case was withdrawn for want of jurisdiction.
12.The plaintiff avers that for the prosecution of all these cases the services of surveyors were engaged at the instance of the defendants and the plaintiff incurred about 700 (seven hundred pounds) sterling exclusive of costs awarded against the plaintiff in the High Court.
13.That after all the expenses incurred it was discovered during the case in court from one of my surveyors, Mr. M.A. Sewojo which fact was confirmed by the defendants’ surveyor Mr. Adebayo O. Morgan that the land is outside the defendants’ land.
14.That on the strength of this the plaintiff avers that he was forced to withdraw the action in Suit LD/294/70 when costs of 25 guineas was awarded against the plaintiff and the objections in the Lands Registry.
15.The plaintiff avers that in the said Conveyance the defendants covenant for their title.
16.In consequence of the withdrawal the plaintiff instructed his solicitor to bring to the knowledge of the defendants his dispossession from the said land and to demand the refund of the purchase price paid and all incidental expenses by letter dated the 8th day of April, 1971.
The defendants failed refused and/or neglected to refund the purchase price and all reasonable and incidental expenses.”
In reply, the defendants averred in paragraphs 1-3 of their Statement of Defence as follows:-
“1.Save and except as are hereinafter specifically admitted the defendants deny each and every allegation of fact in the Statement of Claim as if each were set out seriatim and separately denied.
2.The defendants aver that the plaintiff’s action is misconceived, frivolous, vexatious and an abuse of the process of the court.
3.The Statement of Claim discloses no cause of action for the relief sought.”
At the hearing, the plaintiff testified in support of his claim and tendered the conveyance (Exhibit3) executed in his favour by the defendants before a Magistrate. The defendants covenanted in Exhibit 3 as follows:-
“AND FURTHER the said Vendors hereby covenant with the said purchaser that they have full power to convey and that they have not done anything in any wise or permitted or suffered to be done any act or anything whatsoever whereby they are prevented from selling the said hereditaments.”
Olatunde Laja (1st P.W) the estate agent who introduced the plaintiff to the defendants testified as follows:-
“The defendants said they wanted 1,000(pounds) or the land but the plaintiff said he had only 800(pounds). They disagreed on the purchase price and the plaintiff and I went away. Later that day, Karunwi sent for me and told me to go and bring the plaintiff. I went to the plaintiff and took him back to the defendant attorney. When I returned with the plaintiff the 1st, 2nd, 3rd and 4th defendants were all present. This was at the attorneys house at No.10 Ojenike Street, Abule Ijesha. All the defendants then agreed that the plaintiff should pay 800(pounds) as full purchase price for the land. He paid the 800(pounds) there and then. At that sitting the defendants prepared a receipt which all four of them signed and gave to the plaintiff. The 4th defendant is the defendant attorney. Immediately the money was paid the defendants gave me 80(pounds) which was my commission at the rate of 2 on a pound.”
Another witness who testified for the plaintiff is one Merciline Senwenye (2nd P.W) who is a licenced surveyor. He produced a composite survey plan (Exhibit 18) showing the location of the land sold by the defendants (who are all members of the family of Lawani Giwa) to the plaintiff and that of the Lawani Giwa family. He then testified that the land sold and conveyed to the plaintiff in Exhibit 3 is outside the land of the Lawani Giwa family in Exhibit 18.
In his own testimony, the plaintiff, after confirming the evidence of the 1st P.W as to how he bought the land from the defendants, told the court how he found other people on the land and how after taking them to court, he discovered that the land sold to him by the defendants was not part of their land. He explained the action he took thereafter as follows:-
“I consulted Adebayo Morgan and Mr. Kukoyi who are both surveyors. I told the defendants that all the surveyors I had consulted had told me that the land defendants sold to me did not form part of the land owned by their family. I asked the defendants for refund of my money. They did not. I want this court to obtain my money for me.”
The four defendants did not give evidence and nobody testified on their behalf. In effect, they did not deny any of the evidence given by or on behalf of the plaintiff in support of this claim.
In a reserved judgment, the learned trial Judge dismissed the plaintiff’s claim in its entirety after finding as follows:-
“The contract here was complete. As a general rule such a transaction was at an end between the seller and the buyer and therefore no action is maintainable for any errors as to the quantity or quality of the things sold except with regard to the rights of the purchaser on the covenant of title which does not arise in this case (see Halsburys Laws of England Vol. 34 paragraph 662). The purchaser cannot on the ground of adverse claim recover purchase money which had been paid but he must rely on the covenants of title. In the absence of a covenant for title the purchaser has no remedy in relation to his purchase money unless he obtained rescission on the ground of fraud or mistake. He takes the conveyance at his own risk and cannot recover on the ground of failure of consideration. (See Bree v. Holbech 1871 2 Dong KB 654 see also Clare v. Lamb already referred to). Although I have considerable sympathy for the plaintiff his action is misconceive and must be dismissed…”
In the appeal before us against this decision, learned counsel for the respondents conceded that there is an implied covenant for title in a transaction of this kind. He also conceded that there is an express covenant in the conveyance (Exhibit 3) wherein the defendants –
“hereby covenant with the said purchaser that they have power to convey and that they have not done anything in any wise or permitted or suffered to be done any act or anything whatsoever whereby they are prevented from selling the said hereditaments.”
Since the plaintiff/appellant can only sue for breach of the covenant for title, whether express or implied, we agree that his claim is misconceived. We, however, think that the learned trial Judge was in error in holding that there was no covenant for title. The implied covenant for title in every contract for the sale of land, the ambit of which has been extended by the express covenant referred to above, constitutes, in our view, a covenant for title for the purpose of this case. In this connection, we refer to the decision of the Federal Supreme Court in Ojikutu v. Demuren (1975)2 FSC 72, the facts of which are not unlike those of the case in hand. Foster-Sutton, FCJ., observed at page 73 of his judgment in that case as follows:-
“It is manifestly clear in the first place that a man who pays money for land is entitled in the normal course of events to value for his money, and a part of that value must be represented by the title which he acquires by purchase. In this case, the respondent impliedly covenanted that he had a good right to convey the property to the appellant, and it is obvious from what happened in Suit No. 113/48 that in fact he had no such right, because a competent court has decided that he had no title to the property. Quite apart, therefore, from the express covenant, which, in my view, extends the ambit of the implied covenant, the appellant is obviously entitled at the very least to the return of his purchase money. On the authority of such cases as Rolph v. Crouch LR3 Exch 44, Smith v. Compton 1 LJ., (KB) 146, and Bunny v. Hopkinson 29 LJ., (Ch) 93, he is also entitled to legal costs, to monies advanced for building, to costs of plans and to the cost of clearing the land for building. I do not consider, however, that he is entitled to anything for general damages.”
As we have pointed out earlier, the plaintiff/appellant’s claim in the circumstances of this case, was misconceived. But the fact still remains that the defendants/respondents did not dispute the evidence that they agreed to sell the plaintiff/appellant a particular piece of land, that he paid them the sum of 800(pounds) for the said land, that they duly executed a conveyance (Exhibit 3) in his favour, that he incurred further expenses pursuant to the purchase, that it was later discovered that the land sold to him was outside the area of land owned either by them or by their family, and that all his efforts to get his money back from them proved abortive. The defendants/respondents did not even offer to give him another piece of land for the money which they had received. Instead, they relied on a technicality to defeat a just claim for the refund of his money. It must be remembered that “in a court of equity, wrongful acts are no passport to favour” (as per Lord Uthwatt in Winter Garden Theatre (London) v. Millenium Productions (1948) AC 173 at p. 203). Again, as Edmund Davies, LJ., has rightly observed in Luganda v. Service Hotels Ltd. (1969) 2 WLR 1056 at p. 1062, we “do not think this court should assist those who have been shown prima facie to have trodden roughshod over the plaintiff’s rights.”
To allow this judgment dismissing the plaintiff/appellant’s claim to stand would amount to allowing the respondents in this appeal to tread permanently on the plaintiff/appellant’s rights. We think that it is in the interest of justice that we should make an order which will not debar the plaintiff/appellant forever from pursuing his just claims against the defendants/respondents or their family. This is necessary, particularly as the family of Lawani Giwa, who are shown by the defendants/respondents in the conveyance (Exhibit 3) to be either the absolute or part owners of the land in dispute, have not been made parties to the present action.
We, therefore, allow the appeal and set aside the judgment of the learned trial Judge delivered on 20th November, 1974, dismissing the plaintiff/appellant’s claim in its entirety. We order, instead, that the plaintiff/appellant’s claim be struck out and this shall be the judgment of the court. The plaintiff/appellant is awarded costs of this appeal assessed at N163.00.
Other Citation: (1977) LCN/1913(SC)