Azubike Ume & Ors V. Alfred Ezechi & Ors (1962)

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BAIRAMIAN, F.J

The defendant company has appealed from the judgment of Somolu, J., which awarded the plaintiff £907.

The plaintiff had obtained on 20th April, 1957, a crown lease of a plot in Ibadan but with a condition that within two years he would put up a dwelling-house worth £4,000. On the 11th September, 1957, he entered into an agreement with the company whereby the company would put up the building within that time, and take an assignment of his lease on payment of £900. The parties were alive to the fact that the assignment needed the consent of the Governor of the Western Region. Clause 1 of the agreement begins with these words-

Subject to the consent of the Governor of the Western Region of Nigeria being obtained to the Assignment etc.,

And Clause 4 provides as follows –

The completion of the purchase and payment of the purchase price shall take place not later than the 20th day of April, 1959 at ……….. and IF from any cause whatever the Assignor shall fail to give vacant possession of the said land or fail to complete the said purchase on that day or be prevented from so doing by reason of his failing to obtain the necessary approval to such assignment from the Authorities concerned upon the completion of the said buildings these presents and everything herein contained shall be void and the Assignee shall be entitled to compensation for the value of the buildings and improvements so made and completed on the said land.”

In short, the company undertook to build within the time allowed by the Crown lease on the plaintiff’s plot; if the Governor then approved of his as-signing his lease to them, he would assign it; if the Governor did not approve, he would reimburse the company.

The company was not building, and the plaintiff complained through his solicitors. The company wrote to them on 17th June, 1958, saying that they would not be able to put up the buildings within the time allowed by the lease. The solicitors asked the company to pay the £900; they asked the plaintiff to call at Lagos for discussion; but he made two visits to no purpose, and the £7 is for his expenses on these visits. He sued the company, and obtained judgment for £907.

Their grounds of appeal are –

(a) That the learned trial Judge erred in law in admitting exhibit “N” because (1) Exhibit “N” being a document which creates an interest in land could not at any time be registered without the con-sent of the Governor of the Western Region of Nigeria.

(2) That for lack of registration it is therefore inadmissible in evidence in any court and cannot be pleaded in any pleading.

(3) That it is an unlawful agreement against which there is a statutory prohibition contained in the Crown Lands Law Cap. 29 of the Laws of the Western Region of Nigeria.

(b) That the decision is unreasonable, unwarranted and cannot be supported having regard to the evidence.

At the hearing of the appeal, learned Counsel for the company cited section 7(b)(iii) of the W.R. Crown Lands Law, Cap. 29, which forbids assignment of a lease without the consent of the Governor; when it was pointed out to him that the agreement was made expressly subject to such consent, he gave up ground (a) (3). In regard to grounds (a)(1) and (2) he relied on section 16 of the W.R. Land Instruments Registration Law, Cap. 56, which provides that –

No instrument shall be pleaded or given in evidence in any Court as affecting any land unless the same shall have been registered in the proper office as specified in Section 3: provided that ……….” (irrelevant here).

His attention was drawn to the words “as affecting land” in that provision; he conceded that the agreement was not being used as affecting land, but merely to support a claim to damages for breach of the contract to build, and that the present case did not fall within the provision.

Under ground (b) learned Counsel sought to argue that the £900 was claimed as special damages, and that special damages had to be strictly proved; also that it was unreasonable to give the plaintiff judgment because the company’s failure to build was due to the fact that it was impossible to put up the buildings within the time allowed by the Crown lease.

In criminal cases an application for leave to appeal on the facts is based on the ground that the decision is unreasonable or cannot be supported having regard to the evidence. In civil appeals the grounds of appeal, and the arguments which may be advanced at the hearing, are governed by Rule 2 in Order VII of the Federal Supreme Court Rules, 1961. An appellant is allowed to put in the general ground that the judgment is against the weight of evidence; apart from that, he is required to set forth all his objections to the judgment in his grounds of appeal, not vaguely or in general terms, but concisely and under distinct heads. The aim is to give the respondent notice of the case to be met and to narrow the issues on the appeal, and the appellant must confine his arguments at the hearing to what the respondent could be fairly expected to prepare for under the grounds of appeal.

As intimated at the hearing, impossibility of performance and quantum of damages were matters which should have been expressly raised in distinct grounds of appeal, and which could not be argued under the general ground that the judgment was against the weight of evidence. There was no evidence called for the defendants at the trial: all the evidence of breach of the contract on which the plaintiff sued was on his side; and the ground of appeal has no meaning.

The following order is proposed:

The appeal of the defendant company from the judgment of 21st December, 1961, in the Ibadan Suit No. 1/68/1959, of the High Court of the Western Region, is hereby dismissed with costs of appeal assessed at twenty-one guineas.

Other Citation: (1962) LCN/0958(SC)