Patrick Chieke Vs Iyabo Oluyemisi Olusoga & Ano (1970)

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EMMANUEL OBIOMA OGWUEGBU, J.S.C. 

This is an appeal against the decision of the Court of Appeal, Lagos Division which affirmed the decision of Oguntade, J. as he then was in a civil action filed by the plaintiff against the defendants.

The plaintiff who is the appellant herein filed a civil action against the defendants. The claim as stated in paragraph 18 of the Amended Statement of Claim reads:
“18. The plaintiff claims against the defendants jointly and severally:

(1)    For loss of use at the rate of N10.00 (Ten Naira) per month per room for the period during which the defendants are found to be in unlawful possession until they give up such damages in trespass to the plaintiff’s property situate lying and being at No. 71, Orodu Street, Ajegunle, Apapa.
(2)    Injunction restraining the defendants their servants and agents from further acts of trespass on the aforesaid property.”

The original defendant was one Mr. John Olusoga who died on 13:4:72 after pleadings were ordered, filed and exchanged but before hearing commenced. Following applications made to the trial court, Iyabo Oluyemisi Olusoga and lbironke Olusoga were substituted in his place by the orders of that court. The plaintiff who is of Igbo origin was one of the numerous Easterners who fled Lagos to Eastern Nigeria during the national crises and civil war between 1966 and 1970. He had been living in Lagos for over twenty years before the crises.

On or about August, 1966, he left Lagos for his home town leaving behind in Lagos his family and four houses at 28, Uzor Street, 58, Abukuru Street, 71, Orodu Street and 80, Orodu Street all in Ajegunle. On his return to Lagos in February, 1970, he found that John Olusoga, the original defendant was in occupation of No. 71, Orodu Street. The latter claimed that he purchased the property in 1966 from the plaintiff’s wife who sold it to him on the authority of the plaintiff. He eventually instituted the proceedings leading to this appeal. The defendants/respondents were substituted as his successors in title.
At the conclusion of hearing, the learned trial Judge in a considered judgment, dismissed the claim of the plaintiff. The plaintiff’s appeal to the Court of Appeal was unsuccessful hence a further appeal to this court.

From the issues joined in the pleadings, it appeared to the learned trial judge that the main issues calling for his decision are:
“(a) Was the building, sold to the defendants predecessor John Olusoga and if yes
(b) Who sold the building and under what circumstances
(c) Was the sale of the building authorised by the plaintiff”
On the above issues, he found as follows:

“From the evidence before me, and upon a reflective and careful consideration of the circumstances surrounding the sale of the building I find as a fact that it was P.W.3 who not only sold the building but carried out the negotiations preparatory to the sale, superintended same and introduced late John Olusoga to tenants in the building. I find as a fact that the purchase price 331,550.00 was paid to P.W.3 and that it was part of her attempt to disguise that fact that she instructed D.W.1 to issue and sign Exhibit “M”.

I find as a fact that D.W.1 sent original of Exhibit “H” to P.W.3 so that P.W.3 could come and sell plaintiff’s buildings. I find as a fact that D.W.1 only assisted P.W.3 innocently and a relation to prepare and issue the receipt Exhibit “H” (sic) to John Olusoga. In making the above findings of fact I have given consideration and balanced against each other the story as presented on the point by both the plaintiff and the defendants……………In Exhibit “E” the plaintiff acknowledged that P.W.3 and his relation one Sylvanus Chieke sold the building to John Olusoga.

He undertook to refund the said purchase price 1,550.00 as soon (sic) possible. P.W.1 was present when plaintiff signed and gave Exhibit “E” to John Olusoga…………..It is quite clear to me that what Olusoga was insisting on was the refund of his money before he handed over the building for handing over the documents could not by itself alter the fact that plaintiff was out of possession and Olusoga was in possession…………..That document is plaintiff’s document and act.”

The court below found that the above conclusions of the learned trial judge could not be faulted and dismissed the plaintiff’s appeal. In his brief of argument, the plaintiff submitted the following questions for determination in the appeal:-

(i) Did the obligation or alleged obligation of the plaintiff to sell or convey the property in dispute to the defendant continue in force after the plaintiff had executed and delivered a promissory note to refund the Purchase Price to the defendant who accepted the same and retained it.
(ii) Whether the finding of the courts below that the plaintiff’s wife was the agent of the plaintiff (with power to sell the property in dispute) can be supported.
(iii) Whether the alleged sale or agreement to sell the property in dispute to the deceased defendant Olusoga was valid in the absence of proof of the consent of the Ojora chieftaincy family to the transaction.

(iv) Whether the right title and interest of the plaintiff to the ownership and possession of the property in dispute is capable of being divested from him without the existence of a memorandum in writing which satisfied the requirements of Section 5(2) of the Law Reform (Contracts) Law, Cap.66 Laws of Lagos State.”
The defendants/respondents adopted the above issues for determination in their brief of argument.

It was contended in the appellant’s brief that there was a meeting between the plaintiff and the late John Olusoga in the house of Pathfinder Bamodu (D.W.4) to resolve the dispute arising over the claim by John Olusoga that he had bought No.71 Orodu Street and at that meeting Exhibit “E” was signed by the plaintiff and delivered to John Olusoga who accepted it and that the courts below treated Exhibit “E” as an admission by the plaintiff of the defendant’s averment that Regina Chieke (P.W.3) was an agent of the plaintiff to sell the property in dispute. It was further contended that the courts below failed to consider the legal consequence of Exhibit “E” made by the plaintiff and delivered to the late Olusoga.
It was submitted that a calm reflection of the contents of Exhibit “E” will show that the plaintiff was in effect procuring or purchasing his release from an obligation to sell or convey the property at 71 Orodu Street to the defendant by his promise to refund the sum of N3,000.00 (1,500) to the defendant. It was further submitted that Exhibit “E” has the effect of dissolving and discharging the contract for sale of the disputed property leaving the plaintiff with the obligation arising from Exhibit “E”. In other words, the principle of accord and satisfaction applied.
The case of British Russian Gazette Ltd. v. Associated Newspapers Ltd. (1933) 2 K.B.D. 616 at 643 and 644 was cited.