Abigail Mojibola Majekodunmi & Anor V. National Bank Of Nigeria Ltd (1978)
LawGlobal-Hub Lead Judgment Report
FATAYI-WILLIAMS, J.S.C.
The late Chief Adebiyi Majekodunmi, as plaintiff, claimed against the National Bank of Nigeria Ltd. in the High Court of the former Western State at Ibadan the sum of 9, 680 (N19, 360) whereof the sum of 8,000 (N16,000) was claimed as balance due to him for the assignment by him to the defendants of his leasehold property at New Court Road, Ibadan.
The property was at all material times occupied by the West African Drug Company Limited. The balance of 1,680 (N3,360) was claimed as 10% compound interest on the said sum of 38,000 (N16,000) from April, 1969 to April, 1971 the month before he commenced proceedings.
The late Chief Majekodunmi was a legal practitioner in his life time. The defendants are bankers. By a deed of lease dated 1st November, 1957, the Ibadan Provisional District Council granted to the plaintiff the lease of a piece of land situated along New Court Road, Ibadan, for a term of 99 years from 1st January, 1948. The plaintiff, by virtue of a deed of sub-lease dated 21st April, 1959, sub-leased the said piece of land to the West African Drug Company Limited for a term of 30 years from 1st April, 1958. This sub-lease was later exchanged by the plaintiff for one for a term of 60 years by a deed of surrender and re-lease dated 22nd November, 1963.
In 1962, the plaintiff mortgaged the said property to the defendants as security for a loan of 1,500 (N3,000) which he obtained from the defendants. In 1968, when the plaintiff failed to repay the loan, the defendants threatened to sell the property. As a result of this threat, the plaintiff started negotiations with the defendants for the absolute assignment to them of the lease of the said property. According to the averments in paragraph 9 of the plaintiff’s state of claim, it was agreed by both parties during the negotiations that the assignment would be granted in consideration of the sum of 13,671.8.3p and that after crediting his account with the sum of 1,671.8.3p the defendants would pay him (the plaintiff) the balance of 12,000 (N24,000). The plaintiff also averred in paragraph 10 of his statement of claim as follows:
“10. The plaintiff’s account was accordingly credited with the said sum of 1,671.8.3p and 4,000 was paid by cheque to the plaintiff accompanied by a letter stating that the balance of N8,000 would be paid after the plaintiff shall have put the defendants into possession of the property”. The letter referred to in paragraph 10 of the statement of claim was admitted in evidence as Exhibit D and it reads:
“Ref. No. LAW/G.13/45
National Bank Nigeria Ltd
P.M.B.12123.
LAGOS.
15th March, 1969
Chief A.A. Majekodunmi Iddo House
P.O. Box 159
LAGOS.
Dear Sir,
Your property situate at New Court Road, Ibadan.
We refer to several discussions between your good self and us. We hereby confirm the agreement to take assignment of your leasehold interest in your property situate at New Court Road, Ibadan on the following terms:
(i) Assignment of the whole of your interest to the bank for the sum of twelve thousand pounds (12,000) excluding the credit given for your indebtedness to the Bank;
(ii) One third (1/3) of the assignment money shall be payable to you on the execution by you of the Deed of Assignment upon which the consent of the Ibadan District Council shall have been duly endorsed;
(iii) Payment of the balance of the assignment money to you on your putting us into possession.
Yours faithfully,
for NATIONAL BANK OF NIGERIA LIMITED
(sgd.)J.O. Akiyede
Legal Secretary”
The plaintiff replied to the above letter on 21st March, 1969. He also attached a draft deed of assignment to the reply which was admitted as exhibit L.The contents of Exhibit L are as follows:
Iddo House
P.O. Box 159
LAGOS
21st March,1969
The Legal Secretary
National Bank of Nigeria Ltd.
82/86 Broad Street
LAGOS
Dear Sir,
I acknowledge with thanks the receipts of your letter LAW /G.13/45 of the 15th instant, and in reply thereto I send herewith in duplicate the draft of the Deed of Assignment between your Bank and myself, and I have not the slightest doubt that you will find it quite comprehensive. If you are satisfied with the draft you may get your typist to engross the deed and I will thereafter take upon myself to go with the deed to Ibadan where I will get the consent of the Ibadan District Council endorsed thereon.
Please give this matter your immediate attention.
Yours faithfully,
(Sgd.) A.A. Majekodunmi”
In accordance with one of the terms in the letter Exhibit D, the consent of the Ibadan City Council was duly obtained by the plaintiff on 31st March, 1969. Later, again in accordance with another term stated in Exhibit D, the defendants paid the plaintiff the sum of 4,000pounds (N8,000) by cheque dated 5th April, 1969. The deed of assignment was thereafter executed on 22nd April 1969. Paragraph 4 of the deed reads:
“NOW THIS DEED WITNESSETH that in pursuance of the said agreement and in consideration of the sum of Thirteen thousand six hundred and seventy one pounds, eight shillings and three pence (13,671.8.3p) which the Assignee has agreed to pay to the Assignor, the Assignor as BENEFICIAL OWNER and with the consent of the Ibadan City Council the Successors of the Ibadan (provisional) District Council hereby ASSIGNS UNTO the Assignee ALL THAT the said land and other benefits contained in the lease TO HOLD the same UNTO AND TO THE USE OF the Assignee for the residue unexpired term of 99 years together with the option to renew same at the expiration thereof subject to the payment of the rent reserved thereby and to observance and performance of the several covenants and conditions therein contained.”
It is therefore not without significance that the above paragraph is silent as to how, when, or in what manner the agreed of the assignment will be paid. Be that as it may, when the plaintiff later demanded the payment of the balance of 8,000pounds (N16,000) pursuant to the agreement, the defendants, who had by then realized that the plaintiff had extended the lease to the West African Drug Company Ltd., by another thirty years, refused to say on the ground that one of the terms of the agreement as stated in the letter (Exhibit D was that payment of the balance was dependent on the plaintiff puttings them In possession.
The short point which the learned trial judge had to decide therefore was whether the agreement between the parties consisted of both the letter (Exhibit D) and the deed of assignment (Exhibit E) read together or whether he should look only at the deed of assignment in order to determine the scope of the agreement between them. In the course of his reserved judgement after taking oral evidence from both parties, the learned trial judge observed:
“The plaintiff in evidence said he made oral protest on receipt of Exhibit D to the defendants. If this were so and should be believed, I would, judging from the wealth of experience of the plaintiff in the profession, have expected him to take the obvious step of restating such oral protest in writing in Exhibit D since the defendants claim is also contained in a written document and in circumstances in which it would be in the normal course of things be expected to be denied. I do not believe the plaintiff made any protest on the contents of Exhibit L.
It was in full knowledge of this condition which the plaintiff did not deny in Exhibit D and which in my considered view having regard to a subsequent dealing with the defendants he must be deemed to have agreed to, that he proceeded to prepare a draft deed of assignment which was eventually approved and duly executed. It was subsequent to this that he got a cheque Exhibit O for 4,000 in accordance with the provision of paragraph 2(ii) of Exhibit D.” The learned trial judge thereupon dismissed the plaintiffs claim after finding finally as follows:
“In this case the contents of Exhibit D have not in any way contradicted those of Exhibit E but merely supplemented it. After a careful review of the evidence in this case, I have come to the conclusion that this is the main issue which to my mind needs to be determined by the court for the purpose of this case, the other issues being in my view dependent on it and issues being in my view dependent on it and having regard to my conclusion, irrelevant. It might be possible that the plaintiff himself was genuinely unaware of the futility of the claim to the failure to obtain consent by him sublease i.e. the West African Drug Company Limited from the Ibadan City Council, on which he apparently built the hope of being able to forfeit the lease and put the defendants into possession, it turned out, however, that the requisite consent had been obtained with retrospective effect with the collaboration of the plaintiff himself.
The defendants no doubt I believe relied originally on the ability of the plaintiff to put them into possession. When, however, the futility of this was discovered as was given in evidence by the 2nd defence witness, the defendants were content to fall back and rely on the legal position between the parties having regard to the legal consequences of Exhibits D and E. In my judgement therefore I have come to the conclusion that the putting of the defendants into possession by the plaintiff was a condition precedent to the payment of the balance of N8,000 and that the plaintiff having failed to fulfill this condition, is not entitled to the payment of the said balance of N8,000.”
His appeal to the former Western State Court of Appeal was dismissed for similar reasons, the court having observed as follows: “Is is our view and we agree with the learned trial judge that when the appellant sent the draft of Exhibit ‘E’ with Exhibit ‘L’ he clearly agreed to the terms contained in Exhibit ‘D’ in regard to mode of payment of the consideration. It is not without significance therefore that the mode of payment is absent from the draft deed Exhibit ‘E’, which the appellant prepared. This had to be the case, for the terms had already been spelt out in Exhibit ‘D’ and acknowledged by Exhibit ‘L’. The appellant himself admitted in his evidence that he had been paid up till 1980 by the Drug Company. He was aware of this when he got Exhibit ‘D’ The learned trial judge accepted the evidence of the defence that the appellant told the respondents that the Drug Company was on the land illegally and it would be easy to eject them. We think the learned trial judge was justified in accepting this evidence in view of Exhibits ‘D’ and ‘L’.”
In the further appeal to this Court against the judgement of the former Western State Court of Appeal, the appellant who have been substituted by order of court for the plaintiff who has since died, contended that the Court of Appeal, in affirming the judgement of the High Court, erred in law and misdirected itself on the facts. According to learned counsel for the appellants, the Court of Appeal erred when it found that:
“It is clear by this exhibit (Exhibit D) that in so far as the respondent was concerned the agreement with the appellant in regard to the N16,000 was that payment would be made to the appellant only after the appellant had put the respondent into possession.” Learned counsel further contended that since the respondents’ offer in Exhibit D was not accepted by the plaintiff, the contents of Exhibit D should not have been read into the deed of assignment (Exhibit E) which, being clear and without ambiguity, did not require the aid of Exhibit D for its interpretation. Learned counsel also submitted, in the alternative, that since there is in existence an effective legal assignment of the plaintiff’s property in favour of the respondents, and for which the respondents have not given the consideration agreed to, the Western State Court of Appeal should have entered an order of non-suit against the plaintiff. The dismissal of the plaintiff’s claim in these circumstances, learned counsel finally contended, constituted a miscarriage of justice. The short answer to the first complaint about the letter Exhibit D is that it is that letter, and not the deed of assignment, which provided for the payment of the sum of N8,000. It seems to us that having received the sum of N8,000, it is not open to the plaintiff to then contend, as he did in the trial court, that the terms, stated clearly by the defendants in the letter (Exhibit D) that the payment of the balance of N16,000 is subject to their being put into possession, were not accepted by him.
If he did not accept the terms, why did he cash the cheque for N8,000 and why did he obtain the consent of the Ibadan City Council asked for in Exhibit D In any case, the tone and content of the plaintiffs reply (Exhibit ‘L’) to Exhibit D and under which he forwarded the deed of assignment (Exhibit E) do not in the least indicate that it is only the deed of assignment that should constitute the contract between the parties. Indeed, with his characteristic candour, Chief Chukura, who appeared for the appellants; referred us to Chitty on Contracts, 23rd Edition Vol. 1 Articles 49, 50 and 51, and contended, quite rightly, that an acceptance of an offer-may be demonstrated by the conduct of the parties as well as by their words or by documents that have passed between them.
This, to our mind, is precisely the position in the case in hand. By the document (Exhibit D), the respondent indicated, in unambiguous terms, that they would pay the sum of N24,000 for the assignment of the lease by paying the plaintiff N8,000 first and the balance of N16,000 after he had put them in possession. By collecting the N8,000, and obtaining the necessary consent of the Ibadan City Council to the assignment, the plaintiff must, in these circumstances, be deemed to have agreed to the terms of payments stated by the respondents in Exhibit D. That being the case, the respondents are not bound to pay the balance until they have been put in possession of the property. In our view, the learned trial judge was, therefore, right in dismissing the plaintiffs claims on that ground and the former Western State Court of Appeal was also right in affirming that decision. We also think that the appeal against the order dismissing the plaintiffs claim must fail. As learned counsel for the respondents has rightly pointed out, the plaintiff came to court to claim a specific amount of money without performing a condition precedent to the payment of the amount.
It seems to us, and we agree with learned counsel for the respondents in this respect, that once the appellants are able to put the respondents in vacant possession of the property in question and the respondents refuse to pay them the balance due, nothing can stop the appellants from coming to court and suing for the balance. As of now, however, the only order which the trial court could have made, and which it rightly made, was to dismiss the plaintiff’s claim.
Any other order would not have met the justice of the case, particularly as the respondents had already paid the plaintiff the sum of 5,671.8.3pounds (N11,342.83) at a time when he (the plaintiff) knew that he had already sublet the property to the West African Drug Company for sixty years and had put that Company in possessioon. Indeed, in a court of law and equity such as the High Court, the Court of Appeal, and this Court, wrongful acts are not passport to favour.
It was all these reasons that we dismissed this appeal on 21st February, 1978, and ordered that the appellants should pay to the respondents costs of the appeal which we then assessed at N130.000.
Other Citation: (1978) LCN/2077(SC)
