Ali Safe Vs Northern States Marketing Board (1972) LLJR-SC
LawGlobal-Hub Lead Judgment Report
LEWIS, J.S.C
In Suit No. K/46/1970 in the Kano High Court, the plaintiff’s amended writ of summons filed by leave of the court read:-
“The plaintiff’s claim against the defendant is for a declaration of title to the house situated and known as Plot 59A, Fagge, Waje Area, Kano.”
On the 14th of October, 1970, Wheeler, J., dismissed his claim with 76 guineas costs and against that decision he has appealed to this court.
The plaintiff’s case as pleaded in paragraphs 3 to 10 of his Statement of Claim reads:
“3. On or about 8th of March, 1969, the plaintiff saw a number of posters at public places with the following inscriptions:-
Public Notice
“By order of the Northern States Marketing Board, the Mortgagee and on the instruction of Messrs. F.A. Thanni & Co., Solicitors to the Board reference NO.K/79/68 dated 19th February, 1969, AND IN THE EXERCISE OF THE BOARD’S STATUTORY POWER OF SALE, I shall sell the following Plots Nos. 28A, 32A, 33A 58A, and 59A. All built and situated at Fagge Waje Area, kano………….JOHNSON & FALODE……..
Licenced Auctioneers No. 1577.”
4.One of the said Posters is hereby pleaded and will be tendered in evidence.
- On the 18th March, 1969, the plaintiff went to Fagge, Kano. Where the said houses were auctioned and bought plot 59A for the sum of 510pounds being the highest bidder at the fall of the auctioneer’s hammer. There was no reserve price on the said public auction sale for the said plot 59A.
- The Auctioneers – Johnson & Falode (Licenced Auctioneers – No. 1577) issued the plaintiff with a receipt No. 123.The said receipt No. 123 is hereby pleaded and will be tendered in evidence.
- After the said Public Auction Sale, the plaintiff saw in the “New Nigeria Newspaper” of 23rd June, 1969 that the Defendant was inviting offers for the sale of the said house – plot 59A, again. As a result the plaintiff instructed a solicitor to write and remind the Defendant of the earlier sale to him of the said house by the Defendant’s agent – Messrs. Johnson & Falode on the 18th of March, 1969, and that the plaintiff was waiting for the transfer of the title of the said house to him. A copy of the said letter was sent to the then Solicitor to the Defendant, Messrs. F.A. Thanni & Co., Kaduna.
- The said letter is hereby pleaded and will be tendered in evidence. The defendant did not proceed to sell the house as was advertised.
- On or about 16th day of May, 1979, the plaintiff saw another advertisement in two issues of “New Nigeria’ that the defendant intended to resell the said house plot 59A by Public Auction on the 18th May, 1970, later changed to 19th May, 1970.
10.The plaintiff therefore claims from the defendant a Declaration of Title to the House situated and known as 59A. Fagge, Waje Area, Kano, sold on a public auction by the defendant/authorised agents to the plaintiff AND a Perpetual Injunction restraining the Defendant, its servants and or agents or otherwise from dealing with the said house in any manner inconsistent with the plaintiff’s right.”
and paragraphs 2 to 8 of the Statement of Defence read:-
“2.The defendants having no knowledge of the allegations contained in paragraph 3 put the plaintiff to strict proof thereof. The Defendants aver that Lawyer Thanni was not authorised to authorise the Auctioneers to sell the said Plot and that the Auctioneers should both be acceptable and authorised by the Northern States Marketing Board which they were not.
3.The Defendants put the Plaintiff to strict proof of paragraph 5 and the Defendants deny same.
- The Defendants deny paragraph 6 of the Statement of Claim and put the Plaintiff to strict proof thereof. The Defendants aver that if a receipt was issued which is denied that it was done unlawfully and without authority and that the said building before the date of the alleged sale was worth much more than 5,000pounds and not merely 510pounds. Further, the defendants say that they requested reserve prices on the said properties which was not done. The Defendants also aver that the alleged auction was not held and conducted and that the building was not properly sold to the Plaintiff.
5.The Defendants aver that there was no auction on the said day and the whole alleged auction was a fraudulent attempt to defraud the Defendant of monies due to them and that the plaintiff in any event was acting on the authority of the partners of Nagi Brothers who were the mortgagors of the said property and who were indebted to the Northern States Marketing Board. The Defendants have never accepted the purchase price tendered for the reasons alleged above.
- The Defendants admit paragraphs 7 and 9 of the Statement of Claim.
- With regard to Clause 8 the Defendants aver that it was not as a result of the said letter but because they felt that they would wait a little while in order to obtain the best possible market price from the sale of this House.
8.The Defendant deny that the Plaintiff is entitled to a Declaration of Title to the House at No. 59A Fagge, Waje Area, Kano and deny that the Plaintiff is entitled to an injunction as claimed. The defendants aver that the Plaintiff never bought the said House and deny the said house was ever assigned to the Plaintiff.”
When the matter came for hearing the defendant sought and obtained leave to file an amended Statement of Defence by adding a sub-paragraph to 4 already filed which read:-
“4(2) The defendant further avers in the alternative that the provisions of the Statute of Frauds, the Sales by Auction Law and the Infants Relief Act, 1874, were not complied with.”
The learned trial Judge in his judgment indicated that counsel for the defendant at the end of the hearing abandoned some of the defences that were raised when he said in his judgment:-
“At the end of the day, Mr. Grey for the defendants conceded first, that he no longer relied on the Infants Relief Act and secondly, and of much greater significance, that the auctioneers in question had the authority of the defendant to sell the house by auction but without admitting that they had in fact done so. In the light of the evidence of Mr. Thanni, the solicitor who was acting for the defendants in this matter at the material time, it is not surprising that this admission was made.”
He went on to make important findings when in his judgment he said:-
“I find on the evidence that the plaintiff has proved his case regarding the sale to him of this house by the auctioneers acting on behalf of the defendants.
I have also no hesitation in finding that the defendants have failed to show that the parts played by the plaintiff and the auctioneer in the transaction were in any way fraudulent. There is no evidence before me from which I could fairly infer that.”
The latter finding was particularly important having regard to the allegation as shown in paragraphs 4 and 5 of the Statement of Defence, which we have set out, that the property was worth more than 5,000pounds and was sold for 510pounds by a fraudulent auction as this allegation of fraud was specifically rejected as not being proved by the learned trial Judge. He then found that the plaintiff failed to prove that the receipt (Exhibit 4), which he received from the auctioneer at the auction and on which he relied, was a memorandum that sufficiently complied with the requirements of Section 4 of the Statute of Frauds and that there had been no part performance, and having regard to those findings, the learned trial Judge held that the plaintiff’s claim must fail and he accordingly dismissed it and did not consider certain other objections raised by counsel for the defence pertaining to non compliance with the provisions of Section 20 of the Auctioneers Law and Sections 27 and 28 of the Land Tenure Law but as there was no notice to affirm the judgment on other grounds, it is not necessary for us to consider whether those objections were of any validity.
As we have shown earlier, the learned trial Judge agreed with the concession made at the trial by learned counsel for the Board (the respondents) that the auctioneer (2nd P.W.) acted as the respondents’ agent with respect to the property in dispute, and also found, on the evidence which he accepted, that the agent, on behalf of the respondents, sold the property in question to the appellant and that the sale was in no way tainted with fraud. Notwithstanding these findings, however, the issue as to whether it was open to a principal (in this case, the respondents) or not, in these circumstances, to plead the Statute of Frauds in a claim against him by a purchaser (in this case, the appellant) pursuant to the sale by the agent on the principal’s behalf of the said property, was not canvassed before us and we do not, therefore, propose to express any opinion as to its propriety. The appeal will be determined on the matters argued before us.
A series of grounds of appeal were filed by the plaintiff/appellant but they all amounted to asserting that the learned trial Judge was in error in finding that Exhibit 4 did not comply as a memorandum with the requirement of Section 4 of the Statute of Frauds, and also that even if this court was against that submission the learned trial Judge was also wrong in his finding on the facts that there was no part performance as in the submission of the appellant’s counsel there was.
Now, so far as the question of compliance with Section 4 of the Statute of Frauds is concerned, the material portion of the judgment of the learned trial Judge read:-
“The main defence in law put forward by the defendant is that there is no memorandum in writing in respect of the sale of the house sufficient to comply with the Statute of Frauds. It is common ground that the statute applies in Kano State, but the plaintiff relies upon the receipt, Exhibit 4, made out in his name by the auctioneer immediately after the sale as an answer to this plea. That receipt is so important that I set out its full terms:
JOHNSON & FALODE
Licenced Auctioneers
No. 123 Mart: 23 Langtang Street
Jos.
Date: 18/3/69
Received from: ……………Mr. M. Ali Safe……..
the sum of …………….Five Hundred and Ten………
……………NIL……..Shillings ………..NIL…….Pence
Being ………Highest bid for Sale of 59A Zungeru …….Road, Kano…..
with thanks
(Sgd.)……S. Johnson…..
510pounds: 0: 0d.”
Counsel for the defendants submits that this receipt fails in three respects to satisfy the Statute. In the first place, he says it does not contain any name or identification of the vendor of the house. Mr. Grey points out that the receipt does not mention the defendants or describe them in any way and that, on the authority of Jarret v. Hunter (1886) 34 Ch D 182, this situation cannot be cured by the fact that the plaintiff knew who the vendor was. Mr. Nnadi for the plaintiffs answers that as the auctioneer has signed the receipt and as it is well established that an auctioneer is by virtue of his employment the agent of both the vendor and the purchaser in a sale by auction the requirements of the statute regarding the identification of the parties to the sale have been fulfilled by the receipt. I think Mr. Nnadi is right. Although I was not referred to it, this particular point seems amply covered by the following passage in Halsbury’s Law, Third Edition, Volume 2 at page 73
“The auctioneer, in the absence of special circumstances, is, by virtue of his employment, impliedly the agent of both the vendor and the purchaser to sign the contract or a note of memorandum thereof to satisfy the requirements of both the Law of Property Act, 1925, in the case of land and the Sale of Goods Act, 1893, in the case of goods, both of which statutes apply to sales by auction.”
The reference in that passage to the Law of Property Act, 1925, is of course a reference to the provisions of that Act which correspond with the provisions of S. 4 of the Statute of Frauds. I observe that this statement of the law was approved in Phillips v. Butler (1945) Ch. 358, and is also in conformity with the principle laid down in a decision of the Privy Council in an appeal from the West African Court of Appeal in Basma v. Weekes (1950) AC 441 that it is enough if the memorandum or contract shows who the contracting parties are although they may be agents for others.
However, I believe, Mr. Grey is on much firmer ground in his second submission relating to the Statute of Frauds, his submission namely that the receipt relied upon does not satisfy the requirement that the memorandum must adequately describe the property sold as to leave no room for doubt. Here the receipt solely describes the property as 59A, Zungeru Road, Kano, but the plaintiff is seeking specific performance of a contract of sale of 59A, Fagge, Waje Area, Kano. Assuming that it would have been permissible to have admitted parol evidence positively identifying 59A, Fagge, Waje Area, Kano there is in the event, no such evidence before me, and I therefore hold that on this ground the receipt, Exhibit 4, does not constitute a sufficient memorandum within the Statute of Frauds.
In addition, Mr. Grey submits that the receipt is an insufficient memorandum as it does not contain all the material terms of the contract. I am satisfied too that there is substance in this contention. There is no reference in the receipt to the conditions of sale set out in the notice of the auction, Exhibit 3 or to the mortgage mentioned in that notice or to the requirement that the sale was subject to the consent required by either S. 27 or S. 28 of the Land Tenure Law which it clearly must have been. Accordingly, on this ground also I rule that the receipt, Exhibit 4, fails to satisfy the requirements of S. 4 of the Statute of Frauds.”
It is important however to note that whilst the learned trial Judge correctly reproduced in this portion of his judgment what appears on the face of the receipt (Exhibit 4) he does not reproduce nor did he in his judgment in any way advert to the writing on the back thereon which read:-
“Vide Barrister Thanni’s letter K/79/68 witness to auction and payment, 18/3/69, V.A. Ogunbiyi.”
It is also convenient to set out two other material exhibits namely, Exhibit 3 which was the public notice of the auction and which read:
Public Notice
By the order of the Northern State Marketing Board, the Mortgagee and on the instruction of Messrs. F.A. Thanni & Co. Solicitors to the Board reference No. K/79/68 dated 19th February, 1969, AND IN THE EXERCISE OF THE BOARD’S STATUTORY POWER OF SALE, I shall sell the following plots Nos. 28A, 32A, 33A, 58A, and 59A. All built and situated at Fagge, Waje Area, Kano. Notice of this Public auction has been advertised in the issue of New Nigeria at page 9 bottom of 1st column issue of Monday 17th February, 1969. This Mortgage is registered by the Mortgagee as No. 7 at page 7 in volume 97 miscellaneous of the Lands Registry in the office at Kaduna. Date of auction, Tuesday 18/3/69. Time, 4 p.m.
Conditions of Sale:-
The highest bidder will be the purchaser and cash at the fall of the hammer (Cheques etc. not acceptable).
JOHNSON & FALODE Mart: 23, Langtang Street,
Licenced Auctioneer Jos B/P State
No. 1577 Date 5th March, 1969
Ehindero Press, Jos.”
and Exhibit 8 which read in the material portion:-
“JOHNSON & FALODE Mart:-
(LICENCED AUCTIONEER) 23, Langtang Street, jos.
(Our Ref. 002/3/69)
Date: 24th March, 1969
F.A. Thanni Esq.,
Barrister at Law,
F. 20, Jos Road,
Kaduna.
Public Notice No. K/79/68
Dear Sir,
With reference to your No. K/79/68 of 25th February, 1969, and my memo. No. 001/3/69 dated 3rd instant, I have the pleasure to inform you that the five houses were sold at 4 p.m. on Tuesday 18/3/69.
- Particulars of the condition of the houses, names of respective highest offerer and amount received and receipted for are given hereunder:-
Particular & Plot Buyer’s Name Amount
No.
1 old mud block house
(upstairs) in corner of M. Ali Safe 510:0:0d
Zunguru Road Known
as No. 59A.
1 old mud block house
attached to No. 59A
above (upstairs) on the
side of Marzu Road Hajia Aisat 410:0:0d
known as No. 33A
2 Houses-one mud wall
and roof (upstairs) and
one mud wall and roof
soro house, at the back M. Ahmed Fuste 290:0:0d
of the former both known
as No. 32A & 28A,
Marzu Road.
1 reconditioned storey
house known as No. 58A, 1,205:0:0d
Zunguru Road.
2,415:0:0d
Yours faithfully,
(sgd.) Johnson & Falode.”
Mr. Nnadi for the appellant submitted first that a receipt such as Exhibit 4 could in itself satisfy the Statute of Frauds without referring to the actual property and for that submission he relied on Shardlow v. Cotterell (1881) 20 Ch. D. 90 and Auerback v. Nelson (1919) 2 Ch. 383. These cases to our mind show that
“Pinxton, March 29, 1880, Received of Mr. A. Shardlow the sum of 21pounds as deposit on property purchased at 420pounds at Sun Inn, Pinxton, on the above date.
6d stamp Mr. G. Cotterell
Owner,”
and
“Received of Mr. Auerbach…….10pounds on account of house being sold for 500pounds from Mr. M Nelson …….Possession to be taken in six weeks after date.
1d stamp
Morris Nelson
21/11/1918.”
contained in each case respectively a sufficiently defined description of property to allow parol evidence to be given of what the property actually consisted. Mr. Nnadi then argued that the learned trial Judge should have read Exhibits 3, 4 and 8 (which we have earlier set out) together as he was entitled to do because they were sufficiently connected as was shown by the case of Studds v. Watson (1885) 28 Ch D 305. He also referred us to Hailton v. Mensah (1937) 3 WACA 224 as showing a case where the West African Court of Appeal was satisfied that a receipt was sufficient memorandum to comply with Section 4 of the Statute of Frauds in contrast to another case to which he referred us namely Shelle v. Atitebi (1950) 19 NLR 89 where Reece, J., in the former Supreme Court (now the High Court) held that a particular receipt in the case before him did not amount to the necessary memorandum.
Mr. Grey for the defendant/respondent relied before us for the law to be applied on Cheshire and Fifoot on the Law of Contract 6th Edition pages 168 to 172 and on Rishton v. Whatmore (1878) 8 Ch. D. 467 as showing that to refer from an auctioneer’s entry to her actual conditions of sale there must be a sufficient reference in the document or entry relied on to enable one to go to those conditions of sale and, in his submission, as Exhibit 4 was clearly on the face of it a receipt for 59A, Zungeru Road, Kano, there was no justification by a sufficient reference to go to Exhibit 3 in order to show with the aid of parol evidence that, as claimed in the action, it was 59A, Fagge Waje Area, Kano that was the property sold. It was further his submission that Exhibits 3 and 4 clearly referred to different subject-matters and could not therefore be read together or have parol evidence offered to explain them. Finally, he submitted that the back of Exhibit 4 was first adverted to by this court and that so far as the portion that read:-
“Vide Barrister Thanni’s letter K/79/68”
was concerned, this did not take one indisputably to Exhibit 8, as Mr. Nnadi submitted, because that reference was also used on Exhibit 1 and also in another letter referred to but was never put in evidence so there must be doubt as to which letter was the material one and thus the reference could not be relied on.
For our part we think that with the passing of the years the courts in England have been developing a much more liberal approach to the connecting link between 2 documents so as to enable, with the aid of parol evidence a memorandum to be spelt out that would satisfy Section 4 of the Statute of Frauds. Freeman v. Freeman (1891) 7 TLR. 431 and Pearce v. Gardner (1897) 1 QB 688 are but two examples of where reference was permitted by parol evidence to connect an envelope with the document inside it to fulfil a requirement of Section 4 of the Statute of Frauds that the name of the plaintiff be shown. In Fowler v. Bratt (1950) 2 KB 96, Lord Evershed MR at page 101 set out the requirements for Section 40 of the Law of Property Act, 1925, (which is of a similar nature to Section 4 of the Statute of Frauds, save that it pertains only to contracts for the sale of land, in so far as it also requires a memorandum in writing when like Section 4 it says:-
“Unless the agreement upon which such action is brought, or some memorandum or note thereof, is in writing, and signed by the party to be charged or by some other person thereunto by him lawfully authorised.”)
and also referred to two important earlier cases when he said:-
“I think that the vital question is whether those two documents can be looked at together, and, if so, whether they constitute such a note or memorandum of contract as to bind the purchaser according to the principles of S. 40 of the Law of Property Act, 1925. I do not think that any oral or other contract was proved apart from what is found in these letters. If the two letters cannot be connected, it is manifest that the purchaser’s letter of November 23 (which among other things, does not state the purchase price) cannot form a sufficient memorandum to bind him at law. My view is that we can read the two documents together as connected.
The general principle is thus stated, I think accurately in Williams on Vendor and Purchaser (4th ed.) vol. 1, pp. 20 and 21; ‘Here we may notice that, when it is sought to establish a contract by letters which have passed between different parties, the court will take into consideration the whole of the correspondence which has passed, and will not necessarily draw the line at any particular letter or letters, which might have afforded evidence of a contract if considered apart from the rest’; and earlier, at p. 7, the learned authors had discussed the older and stricter rule that if two documents were to be read together, they must in terms be the one connected to the other, but that, I think, is plainly not now the law. I think that clearly emerges from Long v. Millar (1879) 4 CPD 450, which was analysed by Russell, J., in Stokes v. Whicher (1920) 1 Ch. 411, 418. I think that the observations in Long v. Millar (1879) 4 CPD. 450 are indeed most pertinent in this case, for there the document which contained the terms had been signed by a purchaser, and all that the vendor had signed was a receipt stating, “Received of Mr. George Long the sum of 31pounds as a deposit on the purchase of three plots of land at Hammersmith.” If the vendor was to be bound, then his receipt had to be connected with the purchaser’s letter in order that it might become a sufficient memorandum. It was pointed out that the 31pounds might be any percentage of any purchase money. Therefore, it was not possible to calculate the purchase price there any more than it is here by the mere reference to 280 as a ‘deposit’. But this court came to the conclusion that they were entitled to read the receipt with the purchaser’s letter. Long v. Millar (1879) 4 CPD 450, said Russel, J., in Stokes v. Whicher (1920) 1 Ch 411, 418, comes to this; that, if you can spell out of the document a reference in it to some other transaction, you are at liberty to give evidence as to what that other transaction is, and, if that other transaction contains all the terms in writing, then you get a sufficient memorandum within the statute by reading the two together.’91 Applying those principles, I am clearly of opinion that we can, and must read together the letters of November 20th and 23rd, and, therefore, that if all the relevant terms are to be found in those two documents together, the purchaser, having signed the letter, was bound at law to purchase.”
In Burgess v. Cox (1951) Ch. 383 Harman, J., (as he then was), found that he could read two documents together to remedy the deficiency of the defendant’s signature lacking in the first document relied on as being a memorandum when it was obvious that if the two documents were placed side by side, they referred to the same transaction.
The final case we would like to refer to is Timmins v. Moreland Street Property Co. Ltd. (1958) Ch. 110 which shows the relaxation of the earlier rules and that there need not be a specific or express reference from one document to the other document in order to constitute a memorandum required under the Statute of Frauds as is sufficient if by necessary implication there should be reference from one to the other, as Jenkins L.J., (as he then was), said at page 130:
“The rule has no doubt been considerably relaxed since Peirce v. Corf LR. 9 QB. 210 was decided in 1874, but I think it is still indispensably necessary, in order to justify the reading of documents together for this purpose, that there should be a document signed by the party to be charged, which, while not containing in itself all the necessary ingredients of the required memorandum, does contain some reference, express or implied, to some other document or transaction. Where any such reference can be spelt out of a document so signed, then parol evidence may be given to identify the other document referred to, or, as the case may be, to explain the other transaction, and to identify any document relating to it. If by this process a document is brought to light which contains in writing all the terms of the bargain so far as not contained in the document signed by the party to be charged, then the two documents can be read together so as to constitute a sufficient memorandum for the purpose of Section 40.”
Turning now from the law to its application in the present appeal, it is true that the receipt which is dated the 18th of March, 1969, states that it is in respect of 59A, Zungeru Road, Kano, but the actual words used are “being highest bid for sale of 59A, Zungeru Road, Kano” and on the back are inter alia the words “witness to auction and payment 18/3/69, V.A. Ogunbiyi” (Our underlining). Even accepting Mr. Grey’s contention that the reference on the back of Exhibit 4 “Vide Barrister Thanni’s letter K/79/68” does not take one indisputably to Exhibit 8 (especially as though it bore that reference Exhibit 8 was written on the 24th of March, 1969 – six days after the auction at which Mr. Ogunbiyi was a witness as shown by the endorsement on the back of Exhibit 4), nonetheless, Exhibit 4 clearly shows that the receipt was given in respect of a bid and payment at an auction on the 18th of March, 1969 to which V.A. Ogunbiyi was a witness and we think in the circumstances it would have been perfectly proper for the learned trial Judge to have considered the parol evidence of inter alia Mr. V.A. Ogunbiyi, who was the 4th plaintiff’s witness, which connected that reference to the auction on the 18th of March, 1969, and the contents of the public notice pertaining to that auction (Exhibit 3) and which show that what took place on that day was that 59A, Fagge Waje Area, Kano was auctioned and that the plaintiff bought it and that the receipt (Exhibit 4) which he received from the auctioneer referring to 59A, Zungeru Road, Kano, was in respect of that property auctioned, whether or not it also bore the reference of 59A, Zungeru Road, Kano. If that had been done we think the learned trial Judge would have been bound on the evidence before him to come to the conclusion that a sufficient memorandum containing the terms of the agreement was established by parol evidence when reading Exhibits 3 and 4 together and that accordingly, he would not then have come to the conclusion that he did that there was no sufficient memorandum.Having regard to our decision that in fact there was a sufficient memorandum to satisfy the requirements of Section 4 of the Statute of Frauds, it does not become necessary for us to consider the other ground of appeal argued, that in any case there was part performance established on the evidence here, as our finding that there was a sufficient memorandum is in itself enough to conclude the matter.
We accordingly, allow the appeal and set aside the judgment of Wheeler, J., in suit K/46/1970 delivered in the Kano High Court on the 14th of October, 1970, dismissing the claim with 75 guineas costs, and we do order that the plaintiff be granted the declaration of title sought in his amended writ namely “to the house situated and known as plot 59A, Fagge, Waje Area, Kano.” The plaintiff is entitled to his costs in the High Court which we assess at 116 guineas and to his costs of this appeal which we assess at 46 guineas, though if the appellant (and it is not clear from the record) paid for the record of this appeal he shall in addition receive that sum so paid as costs provided that he established the payment before the Registrar of the Kano High Court.
Other Citation: (1972) LCN/1612(SC)
