K. O. Sosan V. H.F.P. Engineering (Nigeria) Ltd. (2003)
LawGlobal-Hub Lead Judgment Report
MORONKEJI OMOTAYO ONALAJA, J.C.A.
The plaintiff now appellant in this judgment issued a writ against the defendant henceforth referred to in this judgment as respondent.
After service of the writ of summons on respondent, pleadings were delivered exchanged and amended. In accordance with the High Court (Civil Procedure) Rules of Lagos State respondent set up in her statement of defence a counter-claim which was also amended in the course of trial, to which appellant filed a reply. Upon completion of amended pleadings the case proceeded to trial.
Following the acceptable rule now regarded as elementary in Lahan v. Lajoyetan (1972) 6 SC 190, (1972) 1 All NLR (Pt. 2) page 217 that the particulars of claim pleaded in the statement of claim supersede the particulars of claim in the writ of summons. The claims of the appellant were as averred and pleaded in further amended statement of claim of 5 paragraphs hereby reproduced as follows from page 6 of the record of appeal.
“Further Amended Statement of Claim
(1) The plaintiff is the owner of the premises situate at and known as Plot 642 Victoria Island Lagos and registered as title No. Ld 7948 at the Lands Registry, Alausa-Ikeja Lagos State.
(2) The defendant/company is construction company carrying on business in Lagos.
(3) In April 1990, the plaintiff and the defendant executed a sub lease agreement whereby the defendant was purportedly granted a sub lease of the premises at Plot 642B, Victoria Island, Lagos for a period of ten (10) years from 1st October, 1988, in pursuance of which the said title was deposited with the defendant and still in its possession.
(4) The plaintiff avers that the defendant has since been in occupation of the afore-mentioned premises by virtue of the said sub lease agreement.
(5) The plaintiff further avers that the prior consent of the Governor of Lagos State was never obtained for the transactions and has so far not been obtained.
Whereof the plaintiff claims against the defendants as follows:
(i) A declaration that the purported sub lease agreement dated 17th April, 1990, in respect of the premises situate at Plot 642B Victoria Island, Lagos State between the plaintiff and the defendant is null and void by virtue of sections 22, and 26 of the Land Use Act, 1978 And An order setting aside the purported sub lease agreement, and other consequential orders.”
The claims of the appellant were as stated in the further amended statement of claim, see further the rule in I. O. Lahan v. Chief Lajoyetan (supra) followed and adopted in this case as in Off()boche v. Ogoja Local Government (2001) 16 NWLR (Pt. 739) page 458 SC; Eya v. Qudus (2001) 15NWLR (Pt. 737) page 587 CA; Hong v. F. M. Finance Ltd. (2001) 7 NWLR (Pt. 713) page 633 CA; Shell Pet. Dev. Co. (Nig.) Ltd. v. fleta (2001) 11 NWLR (Pt. 724) page 473 CA; Kupoluyi v. Phillips (2001) 13 NWLR (Pt. 731) pages 731 and 736 CA.
Respondent with the leave of the High Court filed an amended statement of defence and counter-claim wherein some of the averments in the under mentioned paragraphs are as follows:
“(8) The defendant avers that all the financial obligations in respect of the transaction between the plaintiff and the defendant has been met by the defendant and all rents were paid to the plaintiff up to date and as at when due.
(9) The defendant admits paragraph 6 of the plaintiffs amended statement of claim to the extent that prior consent of the Governor of Lagos State has not been obtained to the transaction but denies that any payment whatsoever was made by the plaintiff to the defendant as consent fee and puts the plaintiff to the strictest prouf thereof The defendant says further that the plaintiff’ is the holder of the statutory right of occupancy of Plot 642B, Victoria Island, Lagos.
(10) The defendant avers that, it is the statutory duty of the plaintiff as the holder of the land to obtain consent of
the Lagos State Governor to the transaction contained in the sub lease dated 17th April, 1990, and that the plaintiff’s default could not now be used to annul the legitimate transaction between parties thereto.
Counter-claim
(14) By way of counter-claim the defendant repeats paragraphs 1 to 13 above inclusive of the defence. And defendant counter-claim for
(i) Specific Performance by the plaintiff of his statutory duty under the Land Use Act, 1978 to obtain consent of the Lagos State Governor to the sub lease dated 17th April, 1990, between the plaintiff and the defendant.
Damages in the sum of N1,000,000.00 for beach of contract between the plaintiff and defendant.”
(italics mine).
With leave of the High Court appellant filed reply to statement of defence and counterclaim, and pleaded thus in paragraph 7 as follows:
“(7) In answer to paragraph 10 of the statement of defence and counter claim the (sic) (plaintiff) denies that it is its (sic) his duty to obtain Governor’s consent having paid moneys to the defendant as demanded by its letter dated 30th November, 1984.”
On summons for direction appellant intimated the High Court that he would not give evidence or call any witness. So the matter was set down for trial. As indicated above at the trial appellant did not testify nor call evidence. Respondent was then called upon to open her case and called an only witness its legal officer through whom documents of head lease between the Governor of Lagos State and appellant, the sub lease between appellant and respondent, development agreement, and letters between the parties were admitted in evidence and marked exhibits A to E.
The 1st defence witness testified in part of his testimony thus:
“Under the various agreements the defendant agreed to develop the whole property. Going by the lease and sub lease agreements. Exhibits A to E, it is the plaintiff who is obliged to obtain consents.
It is untrue that plaintiff has paid defendant a certain sum of money to enable defendant obtain consent.
It is true that the rent payable to plaintiff was reviewed in May 1991, hence exhibit B a new sub lease agreement was entered into. This exhibit B is the binding agreement between the parties as of today.
Besides the claim for damages, we are asking the court for an order of specific performance. That the court should make an order to compel the plaintiff to obtain consent to the sub lease agreement.
CROSS-EXAMINATION
I am a Legal Practitioner. I know that under the Land Use Decree, there must be the Governor’s consent to any transaction. In this case there is no consent obtained from the Governor. I have read the Land Use Decree as a lawyer. I am the legal adviser to the defendant. I am. aware of the consequences of not obtaining the consent.
I have examined exhibit Band cannot find any provision for the consent to be obtained by either of the parties.
I cannot say off hand the number of houses now built on the land.
I never applied for the form for Governor’s consent as it is the duty of plaintiff to get the consent.
I know negotiations commenced in 1984.
Witness identifies another letter from defendant to the plaintiff.
Mr. Sowemimo seeks to tender it. No objection. Letter dated 23rd May, 1984, from defendant to plaintiff is tendered admitted and marked exhibit ‘F’.”
(italics mine).
At the conclusion of trial, learned counsel for respondent was called upon to address the court first but declined and refused to address the court. As a result learned senior counsel for appellant addressed the learned trial Judge after which the learned trial Judge adjourned for judgment which considered judgment she delivered on 2nd of August, 1995, to be found and covered at pages 83 – 89 of the record of appeal. It is the said judgment which is the subject of appeal in this court.
After a review, evaluation of the evidence and the facts and the applicable law as to the interpretation of sections 22, 26 and 28 Land Use Act as interpreted in Ayo Solanke v. Abraham Abed & Anor. (1962) 1 SCNLR 371: Ibrahim v. Osim (1988) 3 NWLR (Pt. 82) page 257 at 261 the learned trial Judge quoted the Supreme Court by the extract below from the said judgment that:
“Where a statute declares a contract not only void but also imposes a penalty, that contract is illegal ab initio but where the legal sanction is merely to prevent abuse or fraud and no penalty is provided, it is merely voidable.
However, the avoidance is only possible when the person seeking to avoid it has not derived benefit to the detriment of the other party to contract.”
The learned trial Judge finally concluded the judgment as follows:
” … have no option therefore than to enter judgment accordingly. In the final analysis, the judgment of the court is as follows:
(1) Plaintiff’s claim for a declaration that the sub lease is null and void is hereby dismissed.
(2) The sub lease however being voidable is ordered to be set aside provided and
(3) That the plaintiff must pay such sums as would be agreed upon by the firm of estate surveyors and valuers as proposed in clause 8 of the parties agreement in order to refund the sum of money expended by defendants on erecting buildings on the demised property.
Besides this, general damages for the breach of contract assessed at N250,000.00 shall be paid by the plaintiff to the defendant meanwhile.”
Obviously, appellant was dissatisfied with the said judgment.
Timeously appellant lodged and filed a notice of appeal to this court.
In the said notice of appeal appellant raised seven grounds of appeal.
In accordance with the rules and practice of this court appellant furnished the particulars. Appellant caused the said notice of appeal to be served on respondent. Later, appellant with leave of court filed additional grounds of appeal, also served on respondent after which the parties exchanged briefs of argument of appellant and respondent.
From all grounds of appeal, appellant distilled five issued for determination, at pages 1 and 2 in appellant’s brief of argument as follows:
“2. Issues For Determination
2.00. The appellant humbly submits that there are five issues relevant to the determination of this appeal. The appellant is abandoning grounds 1 and 6 of the amended notice of appeal. Issue No. 1 covers grounds 3 and 8.
Issue No.2 covers ground 8. Issue No.3 covers ground 10. Issue No.4 covers grounds 2 and 9. Issue No.5 covers grounds No.4 and 9. The issues arising in this appeal are as follows:
2.01. Whether the Land Use Act provides a penalty for the breach of sections 22 and 26 of the Act?.
2.02. If the answer in paragraph 2.01 is in the affirmative. Is the sub lease agreement dated 17th April, 1990, in respect of the premises situated at Plot 642B Victoria Island, Lagos between the plaintiff and defendant illegal, null and void by virtue of the penalty imposed for the breaches of sections 22 and 26 of the Land Use Act, 1978?.
2.03. Whether the trial court was right in awarding the sum of N250,000. as general damages to the defendant/respondent for breach of contract?.
2.04. Whether on true construction of exhibit ‘F’ it was the defendant’s duty to obtain Governor’s consent?.
2.05. Whether the appellant can avoid the sub lease dated 17th April, 1990, between the appellant and respondent on the ground that he had derived a benefit therefrom?.”
Appellant’s brief of argument was served on respondent which in accordance with the rules of brief writing that respondent’s issue for determination must also be based and correlate with the grounds of appeal. Following this rule respondent raised in paragraph 2 of its brief of argument the undermentioned issues. I shall comment on them latter in this judgment, the issues are:
Question For Determination
The respondent submits that apart from the question of the effect and extent of the finance development agreement earlier enumerated by the respondent the questions for determination in this appeal are not as set out in the appellant’s brief but as follows:
2.01. Whether the learned trial Judge sitting at the High Court has the discretion to decide which of the two seemingly conflicting decisions of the Superior Courts on an issue of law she may follow.
2.02. If the answer to the above is in the affirmative whether the learned trial Judge rightly exercised her discretion in giving judgment to the respondent in the suit upon the preponderance of evidence in support of the respondent’s claim.
2.03. If the answer to 2.1 above is in the negative, whether the decision in the case of Savannah Bank v. Ajilo has overruled previous decisions of the Supreme Court like Solanke v. Abed and Omo-Bare v. New Nigerian Bank Limited with regard to the application of the maximum Nollus Commodum Capere Postest Defendant furia Sua Propria’.
2.04. Whether a “holder” who has failed to obtain the consent of the Military Governor to a transaction can rely on his own wrong doing as a defence to a claim in equity.
Issues 2.1,2.2 and 2.3 respondent’s brief of argument were not based on the grounds of appeal but extracted from particulars supplied to grounds of appeal and more for construction and interpretation of sections 22 and 26 Land Use Act.
After critical and analytical consideration of the issues formulated by the parties and arising from the grounds of appeal the issues are encompassed by this Court as follows:
“(1) Whether the learned trial Judge was right in her interpretation of sections 22, 26, 28 Land Use Act that appellants as holder of statutory right of occupancy had the statutory duty and obligation to obtain the consent of Lagos State Governor in respect of exhibit B?.
(2) Whether the learned trial Judge was right that exhibit B was voidable under the Land Use Act more especially as appellant derived benefit from the transaction?.
(3) Whether the learned trial Judge was right to have entered judgment for the respondent on her counter claim more especially the award of N250,000.00 as general damages for breach of contract?.”
Upon the matter coming up for argument the learned Senior Advocate for appellant adopted appellant’s brief of argument of 23/5/98 and urged the court to allow the appeal.
Similarly, learned counsel for respondent relied and adopted respondent’s brief of argument of 8/5/98 and urged the court to dismiss the appeal.
There was a threshold question as to the burden of proof for failure of appellant to call evidence in support of his averments in his pleadings reflected supra in this judgment, but rested his case on the evidence of the only defence witness and the documents A -E tendered by him and through cross examination exhibit F, a letter written by respondent to appellant. The parties did not at the trial and in their briefs advert their minds as to the legal consequence on the burden of proof especially appellant who sought declaratory order.
This court drew the attention of the parties to the issue of burden of proof on appellant for his failure to call evidence in support of his pleadings and for learned senior counsel for appellant and learned counsel for respondent to address and assist the court on this omission and the legal consequence as to burden of proof.
The learned Senior Advocate submitted that through documentary evidence admitted as exhibits A to F especially exhibit F and that no consent of the Governor of Lagos State was ever sought on exhibit B rendered it void under sections 22 and 26 Land Use Act thereby appellant discharged the burden placed upon him.
Learned counsel for the respondent on issue of burden of proof raised by the court submitted that the failure of appellant to call evidence in support of the averments in the statement of claim meant that appellant did not discharge the burden of proof in law and his case was rightly dismissed.
It is common ground appellant did not call evidence but tendered exhibit F through cross examination of 1st defence witness.
As appellant sought a declaration to set aside exhibit B the onus on him are laid down under sections 135, 136 and 137 Evidence Act, Cap. 112, Laws of the Federation of Nigeria, 1990 see chapter Thirteen Burden And Standard of Proof page 275 by Niki Tobi, J.C.A. (as he then was now J.S.C.) in Law And Practice of Evidence In Nigeria By Chief Afe Babalola, SAN judicially interpreted that a party seeking declaration must succeed on strength of his own case and not the weakness of the defendant’s case. Wherein a defendant sets up a counter-claim as in the instant case, the defendant also has the burden to succeed on the strength of his own case and not the weakness of the plaintiff/defendant case to the counter claim and the court acting judicially and judiciously has the discretion to grant or refuse the declaration Cobblah v. Gbeke (1947) . 12 WACA 294; Kodilinye v. Mbanefo Odu (1935) 2 WACA 336 at 337; Gankon v. Ugochukwu Chemical Industries Ltd. (1993).6 NWLR (Pt. 297) page 55 SC; Bello v.Eweka (1981) 1SC 101; Ayoola v. Odofin (1984) 11 SC 72; Moses Okhuarobo & 2 Ors. v. Chief Asenogua Aigbe (2002) WRN 30 SC, (2002) 9 NWLR (Pt.771) Page 29 at 47 SC; Elendu v. Ekwoaba (1995) 3 NWLR (Pt. 386) page 704 CA, (1998) 12 NWLR (Pt. 578) page 320 SC; A.-G .. Fed. v. A.-G ..
Abia State (2001) 11 NWLR (Pt. 725) page 689 SC; Bankole v. Dada (2003) 11 NWLR (Pt.830) 174; 5 WRN page 40 CA.
The exception to the above rule, is that where the facts in defendant’s case supports the facts in plaintiff’s case, the latter can use the aspect of defendant’s case that supports its case to establish plaintiff’s case. Where a defendant has not set up a counter claim unlike in the instant case the burden on such defendant is just to defend no more no less. Akinola v. Oluwo (1962) 1 SCNLR 325, (1962) WRNLR 133 SC; Oshoboja v. Dada (1999) 12 NWLR (Pt. 629) page 102; Oduyoye v. Lawal (2003) 3 NWLR (Pt. 807) page 432 CA.
The standard of proof in civil cases is on the preponderance of evidence of the balance of probabilities under section 137(1) Evidence Act. The court adopts or approaches establishment of preponderance of evidence under the rule in Mogaji v. Odofin (1978) 4 SC 91 at 95; Jack v. Whyte (2001) 6 NWLR (Pt. 709) page 266 SC.
This rule simply means that the evidence adduced by the plaintiff should be put on one side of the imaginary scale and the evidence adduced by the defendant put on the other side of the scale and weighed them together not by the number of witnesses called by either side but evidence of probative and qualitative value to see which side preponderates is what is meant in legal parlance that a civil case is decided on preponderance of evidence or balance of probabilities Alhaji Balogun v. Alhaji Lahiran (1988) 3 NWLR (Pt. 80) page 66.
Appellant’s case was that by paragraphs 4 and 6 of exhibit F he discharged the burden of proof that respondent undertook by interpretation of paragraphs 4 and 6 of exhibit F raised the presumption that appellant having paid money to respondent for processing the consent of the Lagos State Governor in respect of exhibit B, appellant was no longer obliged to process the consent from the Lagos State Governor his statutory duty was discharged. On the issue of funds to process, the consent order to alienation of exhibit B, respondent vehemently denied it in paragraph 9 of the statement of defence and counter claim as underlined above and in the evidence in chief of 1st DW1. In cross examination 1st, DW1 was not cross examined on this denial nor the amount for consent process suggested to him. The finding of fact by the lower court that appellant did not pay money for processing of consent by Lagos State Governor was borne out from the pleading and evidence of respondent.
The finding of fact was not perverse, as an appellate court there is no legal basis or justification to disturb this finding of fact Nwokoro v. Nwosu (1994) 4 NWLR (Pt. 337) page 172 CA; Ebba v. Ogogo (1984) 1 SCNLR 372; Jack v. Whyte (supra); Ibhajidon v. Igbinosun (2001) 8 NWLR (Pt. 716) page 653 SC.
Applying Mogaji v. Odofin (supra) as there was no evidence offered by appellant the imaginary scale preponderates heavily on the side of respondent. The learned trial Judge was right to have refused the grant of the declaration to set aside exhibit B, as void and a nullity.
Be that as it may, section 20 sub sections (1 )(2) and (3) Land Use Act, Cap. 202, Laws of the Federation of Nigeria, 1990, provides as follows:-
“22. It shall not be lawful for the holder of a statutory right of occupancy granted by the Governor to alienate his right of occupancy or any part thereof by assignment, mortgage, transfer of possession. sublease or otherwise howsoever without the consent of the Governor first had and obtained: provided that the consent of the Governor-
(a) shall not be required to the creation of a legal mortgage over a statutory right of occupancy in favour of a person in whose favour an equitable mortgage over the right of occupancy has already been created with the consent of the Governor;
(b) shall not be required to the reconveyance or release by a mortgagee to a holder or occupier of a statutory right of occupancy which that holder or occupier has mortgaged to that mortgagee with the consent of the Governor:
to the renewal of a sub-lease shall not be presumed by reason only of his having consented
to the grant of a sub-lease containing an option to renew the same.”
Whilst section 26 of Cap. 202, LFN. 1990 states as follows:-
“(26) Any transaction or any instrument which purports to confer on or vest in any person any interest or right over land other than in accordance with the provisions of this Act shall be null and void.”
In argument of appellant learned senior counsel hammered on exhibit F which was a letter dated 23rd May, 1984, addressed and written by respondent to the appellant titled “Re Development Of D Plot 642B, Victoria Island, Lagos State.” Respondent wrote as under mentioned paragraphs:
“We refer to our recent discussion in respect of the above and confirm as follows:-
(1) We shall prepare all relevant architectural, electrical and structural drawings and submit same for approval of the appropriate authorities.
We shall construct at the approximate cost of N800,000.00 (Eight Hundred Thousand Naira) the following:
(2)(a) One duplex of two wings containing three bedrooms, two bathrooms and one (1) family room each on the first floor.
Living/Dinning, kitchen, bathroom, a study room on the ground floor and other provisions for building of chalet or two chalets, three room boys quarters, landscaping, fencing, gates and external decorations.
In consideration for the proposed development you shall pay us as follows:-
Mobilization fee and graduated payments at stages of construction.
We Envisage The Following Time Table 4.1. We shall commence construction within two weeks of receipt of approved plan and statutory consent of the Lagos State Governor to the said sub lease 4.2. Construction will be completed approx. 8 – 10 months from commencement.
(5) The finishing shall be of our usual high standard as evidence by our various completed project within Victoria Island and environs.
(6) In connection with the above and for the processing of approval of building plan we request of you the following documents.
6.1. Original of your title deed (whethere of o or Land Certificate)
6.2. Current Tax Certificate valid till December, 1984.
6.3. Receipt for tenement and ground rent paid till date (valid through, December 1984) in respect of the above property or others owned by you within Lagos State.
Kindly confirm your agreement to the above by signing the duplicate thereof and returning same for our records.
Yours faithfully .
for H.F.P. Engineering (Nig.) Ltd.
Sgd J. Hay
Executive Director.”
The above sections of the Land Use Act supra and the content of exhibit F were reproduced intentionally and advisedly to assist in the consideration and resolving issues 1 and 2 encompassed by this court as to the interpretation of sections 22 and 26 of Land Use Act and as between appellant and respondent who was obliged to obtain the statutory consent for exhibit B from Lagos State Governor. As it is common ground that no application was ever made for the consent from Lagos State Governor in respect of exhibit B was it thereby rendered void or voidable as contended by appellant and respondent respectively under sections 22 and 26 Land Use Act supra. After consideration of the facts, the law in particular sections 22 and 26 Land Use Act the learned trial Judge found as a fact that as appellant derived benefit from the transaction about exhibit B she refused to declare it null and void but voidable. This finding by the learned trial Judge is the crux of this appeal.
Appellant contended and submitted a proper interpretation of sections 22, 26 and 28 Land Use Act especially section 20(1) and section 28 sub (1) and (2) which empowered the Governor to revoke and where there was wrongful alienation and non compliance provides alternative penal rent to be imposed without prejudice to revocation amounted to imposition of penalty thereby rendered exhibit B null and void by virtue of sections 22 and 26 Land Use Act in support appellant relied on the decision in Savannah Bank (Nifd Ltd. v. Ajilo (1989) 1 NWLR (Pt. 97) page 305 in particular the lead judgment per OBASEKI, J.S.C. at page 327 the learned trial Judge applied the decision in Solanke v. Abed (1962) 1 SCNLR 371; (1962) 1 All NLR 230 at 233 wrongly which was based on the fact that section II of the Land And Native Right Act, Cap. 105, Laws of the Federation, 1948 did not provide a penalty for the breach of section II requiring consent to alienation of land thereby inapplicable to Land Use Act. In Ibrahim v. Osim (1988) 3 NWLR (Pt. 82) page 257 at 261 it was held that where a statute declares a contract not only void but also imposes a penalty contract is illegal ab initio but where the legal sanction is merely to prevent abuse or fraud and no penalty is provided is voidable that was exactly what Solanke v. Abed decided but inapplicable to the Act. The decision of the learned trial Judge was wrong and not to have followed Savannah Bank v. Ajilo (supra), so the appeal court should declare exhibit B null and void thereby a nullity.
Appellant submitted that it was the statutory holder of statutory right of occupancy upon alienation of his right of occupancy to a third party that should normally apply for the consent of the Governor of Lagos State but the combined effect of paragraphs 4 and 6 of exhibit F to have shifted the burden to obtain consent for the transaction of the Governor on the respondent. The learned trial Judge’s finding that it was the appellant who should obtain the consent of the Governor of Lagos State was erroneous and ought to be set aside and declare exhibit B a nullity. The guide to construe exhibit F was stated by Kolawole, J.C.A. in Amizu v. Nzeribe (1989) 4 NWLR (Pt. 118) page 755 at 777 which would have resulted in proper construction of exhibit F that appellant was no longer obliged to obtain the consent of the Governor of Lagos State in respect of the sub lease covered by exhibit B.
For the forgoing reasons the appeal be allowed and declare exhibit B a nullity. Reliance was put and for support the decision in Awojugbagbe Light Ind. Ltd. v. Chinukwe (1995) 4 NWLR (Pt.390) page 379.
The respondent submitted that it is common ground that exhibit B was sub lease between appellant and respondent in respect of head lease exhibit A between appellant and Lagos State Government.
In respect of exhibit B, no consent for the alienation was sought by the appellant or respondent for the consent of the Governor of Lagos State. As appellant is the statutory holder of statutory right of occupancy the onus is cast on appellant under section 22 to obtain or process the consent of Lagos State Governor. It is doing violence to interpretation of paragraphs 4 and 6 of exhibit F that it shifted the burden on respondent to process the Governor’s consent. Appellant made a myopic interpretation of exhibit F which was building implement contract and sets out the terms and condition to effect the contract. Appellant has read paragraphs 4 and 6 of exhibit F out of con a full reading of exhibit F would show that no provision was made in it that respondent should process and obtain the Governor’s consent. All that exhibit B was about was building implement contract. That applying Solanke v. Abed (supra) and Ibrahim v. Osim (1988) 3 NWLR (Pt. 82) 257; Awojugbagbe Light Ind. Ltd. v. Chinukwe (supra) is a better law than page 257 Savannah Bank v. Ajilo (supra). The learned trial Judge exercised her judicial discretion judicially and judiciously that it was appellant who had the burden to get the Governor’s consent for the transaction on exhibit B. Respondent averred in paragraph 8 of the statement of defence and counterclaim that appellant was paid rents as at when due. It is unconscionable for appellant who had derived benefit from exhibit B to declare it a nullity. The courts frown at such action as decided in Adedeji v. National Bank of Nigeria Ltd. (1989) 1NWLR (Pt. 96) page 212 and Ugochukwu v. Co-operative & Commerce Bank Ltd. (1996) 6 NWLR (Pt. 456) page 524 wherein the Supreme Court endorsed with approval the statement of WINGERY L.J. in Buswell v. Godwin (1971) 1 All ER 418 at 421 that:
“The proposition that a man will not be allowed to take advantage of his own wrong is no doubt a very salutary one and one which the court would wish to endorse.”
also endorsed in Adedeji v. National Bank of Nig. Ltd. (supra).
For the foregoing reasons appellant who did not call evidence that did not establish, considering all the circumstances of the case he was entitled to be granted the declaration sought by him as appellant’s action was a fraud on respondent the learned trial Judge was right that exhibit B was voidable and not void. The appeal court should dismiss the appeal as not only lacking in merit, and substance but also frivolous and unmeritorious.
The above is a resume of the contest between the parties raised in this appeal.
As stated above, the crux of this appeal is the applicability of sections 22, 26 Land Use Act, Cap. 202, LFN, 1990 to exhibit B.
It is common ground that neither the appellant the statutory holder of right of occupancy of exhibit A to which he granted exhibit B as a sublease to respondent both parties did not apply for the consent of the Governor of Lagos State to cover the transaction which failure appellant prayed the court notwithstanding that as evidenced by 1st DW in establishing the averment in paragraph 8 supra of the statement of defence and counter claim that rents derivable under exhibit B were paid by respondent to appellant as at when due was so found by the learned trial Judge this finding of fact that appellant derived benefit from the transaction involved in exhibit B was borne out from the evidence. The finding of fact is not perverse as an appellate court there is no basis for me to disturb this finding of fact reconfirmed as already found and stated earlier in this judgment.
In not a dissimilar fact the Court of Appeal per AKPATA, J.C.A. (as he then was) stated in Emmanuel O. Adedeji v. (1) National Bank of Nigeria Ltd., (2) CJP Johnson (1989) 1 NWLR (Pt. 96) page 212 at 226 and 227 that:
“Apart from the principle of law involved in this case, it is morally despicable for a person who has benefited from an agreement to turn round and say that the agreement is null and void. In pursuance of the principle that law should serve public interest, the courts have evolved the technique of construction in bonam partem.
One of the principles evolved from such construction in the interpretation of statutes is that no one should be allowed to benefit from his own wrong (nollus commodum Capere postest de juria sua propria). As Widgery, L.J., said in Buswell v. Goodwin (1971) 1 All ER 418 at 421, ‘The proposition that a man will not be allowed to take advantage of his own wrong is no doubt a very salutary one and one which the court would wish to endorse’. The effect is usually that the literal meaning on the enactment is departed from where it would result in wrongful self-benefit.”
See also Oilfield Supply Centre Ltd. v. Johnson (1987) 5 SC 310, (1987) 2 NWLR (Pt. 58) page 625 SC.
The complaint of appellant that the learned trial Judge was wrong to have refused declaration of exhibit B on the ground that appellant had derived benefit from it was amply justifiable that the learned trial Judge of the High Court of Lagos was empowered under the High Court Laws of Lagos State to apply law and equity and where there is conflict the rule of equity shall prevail the action of the appellant is unconscionable and deprecated by a court of equity.
The appeal against this aspect of the judgment of the learned trial Judge the appeal lacks substance and it is unmeritorious leading to the dismissal of the appeal.
Let me reiterate the provision of sections 22(1) & 26 Land Use Act, Cap. 202 thus:
“22(1) It shall not be Lawful For The Holder of a statutory right of occupancy granted by the Military Governor (Executive Governor of a State) to alienate his right of occupancy or any part thereof by assignment, mortgage,
transfer of possession, and sublease or otherwise howsoever without the consent of the Military Governor first had and obtained Provided that:-
“(26) Any transaction or any instrument which purports to confer on or vest in any person any interest or right over land other than in accordance with the provisions of this ACT shall be null and void.”
It is common ground that appellant is the holder of statutory right of occupancy by exhibit A part of which he granted a sub lease as per exhibit B to the respondent. It is appellant’s case that as per paragraphs 4 and 6 of exhibit F it was the responsibility of respondents to process the consent of the Governor of Lagos on exhibit B. Exhibit F and in particular paragraphs 4 and 6 upon which he predicated his discharge as holder of statutory right of occupancy to get consent of the Governor of Lagos State was set up above in this judgment there is nowhere in the whole of exhibit F that it was the responsibility of respondent to process the consent. Contrary to the provision of section 132(1) Evidence Act appellant introduced extrinsic evidence to infer and presumed that it was the respondent to process the consent of the Governor this is not permissible as decided in Union Bank of Nig. Ltd. v. Professor Q. O. Ozigi (1994) 3 NWLR (Pt. 333) page 383 at 450 CA. see The Law and the Practice of Evidence In Nigeria By Chief Afe Babalola, SAN page 226, Applying the above to the facts of this case exhibit B is voidable under public policy so as not to perpetuate injustice by endorsing a party to benefit from his default. I am in complete agreement with the learned trial Judge that exhibit B is voidable Ayo Solanke v. Abraham Abed & Anor. (1962) 1 SCNLR page 371. For the foregoing reasons after due consideration I resolve the encompassed issues 1 and 2 by this court against appellant and dismiss the appeal as adumbrated above.
The encompassed issue 3 raised the issue whether the award of general damages awarded for breach of contract was sustainable at law. The next and last encompassed issue is the award of the sum of N250,000.00 by the learned trial Judge as damages for breach of contract. The attitude of an appellate court on award of damages is well settled and trite as where the award is manifestly too low or too large or where the award was based on wrong principle of law. The complaint of appellant is based that the award was based on wrong principle of law for the award of damages for breach of contract.
The Supreme Court in a line of authorities laid down the principle to guide the court in award of damages for breach of contract and the starting point and still the source and guide for award of damages for breach of contract is the notable old case of Hadley v. Baxendale (1854) 9 Exch page 461. In Bolag v. Hutchinson (1905) AC 515 LORD MACNAUGHTEN at page 525 stated that:
“It seems to me that this argument is founded on an inaccurate use or perhaps I should say a less accurate application, of the terms ‘Special Damage’ and ‘General Damage’. That division of damages is more appropriate, I think, in cases of tort than in cases of contract.
‘General damages’ as I understand the term, are such as the law will presume to be the ‘direct’ natural or probable consequence of the act complained of. ‘Special damages’ on the other hand are such as the law will not infer from the nature of the act. They do not follow in ordinary course. They are exceptional in their character and, therefore, they must be claimed specially and proved strictly. In cases of contract, special or exceptional damages cannot be claimed unless such damages were within the contemplation of both parties at the time of the contract.”
In Chanrai v. Khawam (1965) 1 All NLR 182 at 188 the Supreme Court observed on the categorisation of special and general damages in contract cases as follows:
“We would point out that the terms ‘special’ and ‘general’ damages are misleading and are likely to create confusion in the assessment of damages, especially when those terms are employed in connection with cases in which no such distinction is either necessary desirable.” See further Mobil Oil Nigeria Ltd. v. Abraham Akinfosile (1969) 1 NMLR page 217 SC; Maiden Electronics Works Ltd. v. A.-G., Federation (1974) NMLR 255 SC, (1974) 1 All NLR (Pt. 1) page 179 SC; DHL Int. (Nig.) Ltd. v. Chidi (1994) 2 NWLR (Pt. 329) page 720 CA; Beluonwu v. O. K. Isokariari & Sons (Nig.) Ltd. (1994) 7 NWLR (Pt. 358) page 587 CA were cases on award of general damages for breach of contract. They were all applied, followed, adopted extensively and re-echoed in a restatement on the issue of award of general damages in breach of contract in the case of Nigerian Breweries Plc v. Adetoun Oladeji (Nig.) Ltd. (2002) 15 NWLR (Pt. 791) page 589 at 618 – 619,623 and held 2 on the attitude of appellate court to award of general damages by trial court, 2002 18 WRN page 87, at 89, 92, 93 CA and that award of general damages is in the realm of tortious claim and not for breach of contract which award is governed by the rule in Hadley v. Baxendale (1854) 9 Exch 341. Applying above cases to the instant appeal it is crystal clear that the learned trial Judge applied a wrong principle of law in her award of N250,000.00 as general damages, this is an exception to the general rule that an appellate court is loathe to interfere with award of damages by the lower court. I therefore have to interfere with the award of N250,000.00 by the learned trial Judge as it was based on wrong principle of law pointedly to setting aside the award of general damages for breach of contract.
The complaint of appellant on award of N250,000.00 general damages for breach of contract is meritorious and succeeds, the second leg of the appeal succeeds the appeal is allowed on this issue and resolved against the respondent.
Having held that appellant has the statutory duty to apply for consent of the Lagos State Governor for transaction covered by exhibit B and having derived benefit therefrom appellant is hereby ordered to complete his obligation in exhibit B the sub-lease with dispatch see FGN v. Zebra Energy Ltd. (2002) 18 NWLR (Pt. 798) page 162 at 203 SC so the counterclaim for specific performance succeeds though not as couched by the learned trial Judge the first limb of the counterclaim for specific performance without invocation of an external estate surveyor and valuer.
As the appeal succeeds in part it has resulted in pyrrhic victory so I make no order of costs.
Other Citations: (2003)LCN/1356(CA)