Albert Afegbai Vs Attorney-general Edo State (2001)

LAWGLOBAL HUB Lead Judgment Report

AYOOLA, J.S.C.

The only issue on this appeal from the decision of the Court of Appeal dismissing an appeal from a dismissal of the appellant’s claim by the High Court of Edo State, as formulated by counsel for the appellant, is whether the appellant had failed to prove the essential ingredients of fraudulent misrepresentation against the respondent. The facts which led to the appellant’s claim in the High Court have been clearly and helpfully summarised in the judgment of Akpovi, C.J., Edo State who heard the case in the High Court as follows:

“The facts are simple. Government acquired part of the plaintiff’s land at Isiohor near Ugbowo and the parcel of land remained acquired. The plaintiff went to court and sued for compensation to be paid to him in respect of the land. Compensation was not paid. While the case was in court the defendants negotiated settlement with the plaintiff’s Solicitor to give another parcel of land to the plaintiff in lieu of monetary compensation. The plaintiff, through his Solicitor acting as agent, accepted this proposal, the defendant produced the certificate of occupancy in favour of the plaintiff and delivered it to the court when the settlement was regarded as completed, and the terms were filed in court, enrolled as the judgment of the court. It was a negotiated and settled agreement which led to a consent judgment of the court. Between the defendants and the plaintiff’s solicitor, indeed the plaintiff himself, the matter was regarded as having been laid to rest. What then followed was that when the plaintiff’s case was still in court he applied to the defendants to make a Grant to him out of the defendants land at their new layout land at Etete in Benin City. The plaintiff did not inform his Solicitor about this. The defendants agreed to make a grant of the plot of the land to the plaintiff and use it to offset the compensation that the plaintiff had demanded on his acquired land at Isiohor.The problem that has arisen is that the plaintiff is contending that the grant of the plot to him had nothing to do with the demand of compensation for his land for which he sued the defendants, saying that, if he knew that fact before the enrolment of the consent judgment he would not have agreed to it.”

The trial Judge in resolving the issue in the case held that the consent judgment to which the appellant’s solicitor agreed was a proper judgment of the court. That the appellant’s solicitor’s consent was binding on him was an issue in the Court of Appeal but it is not one in this appeal. The trial judge having identified the main question to be: Whether that “proper judgment” could be set aside as null and void for fraud, or put otherwise, whether it can be said “from the facts before the court that the defendants were fraudulent or were guilty of misrepresentation”, answered the question in the negative.

He said:

“I must say that from the facts before me fraud on the part of the defendants has not been proved. I accept the evidence of the defence witness Mr. Izilien that the defendants issued a certificate of occupancy in respect of the land at Etete Layout and did so within two months of the application by the plaintiff in order to meet the terms of settlement in court.”

Having adverted to the promptness with which land was granted to the appellant by the Government, the learned trial Judge came to the conclusion which, indeed, amounted to a finding of fact, that in the circumstances in which the Government is not obliged to grant land to an applicant for an allocation of state land such grant is not a sale, and that “the Government is entitled to make a grant of their land to an individual in lieu of compensation to him in respect of acquired land elsewhere.”

Although not stated in so many words, it is clear that on the evidence before him the trial Judge found as a fact that the allocation of plot 263 at Etete Layout in the New GRA was given to the appellant through the court to satisfy the settlement of the case in court for compensation in the appellant’s acquired land. That was the essence of the respondents’ defence and of Mr. Izilien’s evidence which the learned Chief Judge accepted.

It may well be noted that the evidence of the appellant’s solicitor who negotiated the settlement of the claim for compensation in his behalf confirmed that the “State partly promised to give to plaintiff another position (sic:portion) of land in Benin City in line (sic: lieu) of compensation due to plaintiff.” Then he also said that he

went into negotiation whereon Mr. Izilien identified to him plot 263 as the plot of land he had decided to allocate to the appellant. He accepted the allocation and an agreement which he signed was accordingly drawn up. The appellant’s solicitor confirmed that he had authority to accept any suitable compensation. His only objection was that the appellant’s property would not be suitable compensation. The appellant himself admitted under cross-examination that he was advised to apply for an allocation of land when the acquisition of his land could not be rescinded. He therefore applied for land in October, 1984.

It seemed clear from the evidence on record and accepted by the learned Chief Judge that there was only one transaction, and not two as the appellant had misled himself into believing and had wanted the court to believe. That single transaction was one in which the main objective was to compensate the appellant in kind by allocation of another plot of land to him in lieu of his land acquired by the Government. The appellant’s application for allocation of land and subsequent allocation of land to him were processes in the fulfillment of that objective. It was upon fulfillment of that objective, it would appear, that the matter was closed by the entry of a consent judgment.

The appellant alleging fraudulent misrepresentation sought to set aside the consent judgment. The trial court did not find fraudulent misrepresentation proved and the Court of Appeal agreed with the trial court. Notwithstanding that the decision of the Court of Appeal was a split decision (Ige & Ubaezonu, JJ.C.A. dismissing the appeal, and Akpabio, J.C.A, dissenting) it is clear that they were all unanimous in holding that there was no fraudulent misrepresentation. Akpabio, JCA, said:

“My learned sister in the lead judgment has carefully reviewed all the ingredients that constitute the offence (sic) of fraudulent misrepresentation, and can find none in this case, and I agree with her.” (Emphasis mine)

A consent judgment will be set aside on any ground which may invalidate an agreement on which it is founded would be rescinded. When therefore, a consent judgment is sought to be set aside on the ground of fraudulent misrepresentation, the same principles apply as would apply were the action one for rescission of a contract. In Huddersfield Banking Co. Ltd. v. Henry Lister & Son, Ltd. (1895-9) All ER Rep 868 it was held that a consent order made by the court to give effect to the compromise of a legal claim by the parties concerned can be set aside, not only on the ground of fraud, but for any reason which would afford a ground for setting aside the agreement on which the order was made, for example, on the ground of a common mistake regarding a material fact. In that case Lindley, E CJ, said:

“The only thing, to my mind, to be done on this point of setting aside a consent judgment is to see whether the agreement upon which it was based can be invalidated or not. If the agreement cannot be invalidated, the consent order is good. If the agreement can be invalidated, the consent order is bad.”

In this case the appellant sought to invalidate the consent judgment on the ground of fraudulent misrepresentation. He did not allege common mistake. So we are concerned with the limited question whether fraudulent misrepresentation was established. In this well trodden area of law, the principles that apply in a claim for rescission of a contract for fraudulent misrepresentation need only be stated briefly. 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. Where there is no representation of an existing fact it will not be necessary to proceed to consider any question of falsity. Where there is misrepresentation it is essential for the purpose of relief to consider whether it is fraudulent or innocent and whether the representee had acted in reliance on the misrepresentation.

Whether there is a misrepresentation is a question of fact. What was alleged in the writ as constituting a misrepresentation in this case was that “The defendant falsely represented to court and counsel acting on behalf of the plaintiff……. that a different land has been allocated to the plaintiff.” In the statement of claim, it was also stated under “particulars of fraud” that the misrepresentation was that Mr. Izilien, Deputy Chief Lands Officer, representing the defendants, informed the court that plot 263, Etete, had been granted to the plaintiff in lieu of compensation and “that by reason of the said representation, Mr. Oluyede not being aware of the true state of affairs signed the compromise arrangement which crystallised into the consent judgment”.

In my opinion, the view held by the Chief Judge, confirmed by the unanimous view of the Court of Appeal, that fraudulent misrepresentation had not been proved, cannot be faulted having regard to the evidence accepted by the learned Chief Judge. The parties agreed that land would be allocated to the appellant in lieu of compensation. Mr. Izilien and the appellant’s solicitor agreed that plot 263 would be such land allocated. There was neither representation made to the appellant’s agent nor falsity in any representation that plot 263 had been allocated in lieu of compensation. If there was any falsity, it was in the claim of the appellant that there were two parallel and unrelated transactions. His error was, apparently, that he did not realise that even if land was to be allocated to him in lieu of compensation, he still had to go through the process of allocation and documentation. He admitted with candour that his applying for allocation of land was suggested and initiated by the respondent’s witness as part of the negotiation to grant him land in lieu of the compensation for land which was compulsorily acquired, but he did not seem to have attached any consequence to that fact.

Even if a statement is true in the sense in which the representor meant it but is so obscure that the representee understands it in another sense, in which it is untrue, the representor is not liable if his interpretation is the correct one. (See Mc Inerny v. Lloyds Bank Ltd. (1974) 1 Lloyds Rep. 246, 254.) It has further been held that the representor is not guilty of fraud, even if the court holds that the representee’s interpretation was the correct one. (See Akerhielm v. De Mare (1959) AC. 789; Gross v. Lewis Hillman Ltd. (1970) Ch. 445.)

It is evident in this case that the interpretation given by the appellant to any statement by any agent of the respondents that the appellant has been given plot 263 in lieu of compensation as meaning ‘another plot other than that allocated pursuant to his application was, sadly, of his own making, which, divorced from the antecedent negotiations and the surrounding circumstances, was erroneous. He appeared to have understood any such statement in a sense which was untrue. Rescission of a contract cannot be based on a misinterpretation of the representor’s statement which on its true interpretation is not false.

It is obvious that counsel for the appellant found himself hard put to make any sensible case on this appeal when he argued that the representation was an alleged statement of Mr. Izilien (DW 1) that “the respondents were willing to settle the issue of compensation with the appellant by the provision of another alternative land”, without adverting to the fact that any such statement not being of an existing fact would not avail the appellant.

This appeal, evidently, could have been shortly dealt with on the well established principle that this court will not lightly interfere with concurrent findings of fact made by the trial court and the Court of Appeal, unless such findings are perverse and utterly unreasonable. Such is not the case in this appeal. It is merely in deference to the fact that there was a split decision of the Court of Appeal that time has been taken to give a considered judgment. It is well to note that it being the unanimous finding of the court below that there was no fraudulent misrepresentation, that should have been the end of the matter since that finding struck at the root of the action. The finding in the dissenting judgment that land claimed to be allocated in lieu of compensation was at the time of such allocation already the property of the appellant is, on the evidence, erroneous and was not the basis of the appellant’s claim in the High Court.

Be that as it may, this appeal is utterly without substance. Accordingly, I dismiss it with N10, 000.00 costs to the respondents.

SC.111/1996