J.O.O. Imana V. Madam Jarin Robinson (1979)

LawGlobal-Hub Lead Judgment Report

A. N. ANIAGOLU, J.S.C. 

The defendant, who is the appellant in this appeal, by a Conveyance (tendered in evidence as Exhibit C and dated 12th October 1966), sold and conveyed a parcel of land, situate in Benin City, of which she alleged was seized “in fee simple in possession free from incumbrances”, to the plaintiff/respondent in consideration of a sum of ‘a3245. She described herself, in the Deed of Conveyance, as the “beneficial owner”.

The plaintiff proceeded to develop the land and to make improvements thereon in the course of which he was challenged by a third party (one Uwensuyi Edosomwan) who laid claim to title to the land a title which he later successfully established in court, leading to the dispossession of the plaintiff of the piece of land. The plaintiff in turn took action against the defendant claiming as follows:

“The Plaintiffs claim against the Defendant is for the sum of 2,066: 19:8pounds (Two thousand and sixtysix pounds, nineteen shillings and eight pence) and 100poundes (One hundred pounds) being special and general damages respectively for breach of covenants for title contained in and quiet enjoyment implied in a Deed of Conveyance dated 12/10/66 of a parcel of land and made between the Defendant , Madam J arin Robinson one part and the Plaintiff Josiah Oswald Omanigbuan Imana on the other part.

The said parcel of land situates in Ward 23L, Benin City within the Benin JudicIal Division.”

The case came for determination in the Benin High Court before Ogbobine, J. In a careful and particularly well considered judgement Ogbobine J. dealt with the issues of fact and law and entered judgement for the plaintiff against the defendant for special damages only, and costs.

From this judgement the defendant has appealed to this court and filed the following grounds of appeal:

“(1) The learned trial Judge erred in law holding

(i) that there had been breach of the implied covenant for title by the defendant/appellant in the circumstances of this case; or

(ii) that the judgement in Suit Number B/28/67 between Edosom wan and Imana constituted such a breach.

(2) The learned trial Judge misdirected himself on the doctrine of “Caveat Emptor” which is applicable to the circumstances of this case by holding that It was for the defendant/appellant to disclose defects in her title and not for plaintiff/respondent to investigate it when the claim for damages arose not out of “contract” but out of an “executed conveyance of land” .

“(3) The learned trial Judge misdirected himself in law as to the measure of damages in this case by allowing the plaintiff/respondent to recover more than “the purchase price” on the basis of total failure of consideration when he held thus: “I consider the proper course is to treat the purchase price and other expenses as standing in the same position and each as having been paid for a consideration which has wholly failed.”

(4) In view of his own apparent finding that the defendant/appellant was not in breach of the covenant for quiet enjoyment, the learned tria Judge erred in law when he nevertheless, held that the proper measure of damages is the total amount actually and reasonably expended by the plaintiff/respondent up to the date when the High Court declared that the land belonged to a third party; and (i) because, the adjudication being upon the breach of the implied covenant for title, or for total failure of consideration on account thereto , the breach and damage if at all, was complete upon the execution of the conveyance; or (ii) because it was not Proved or found that the total money so expended or claimed as special damage was reasonably incurred, or directly in consequence of the said breach of covenant or that it was with full notice to the defendant/appellant.

(5) The learned trial Judge erred in law (i) when he awarded as a specific head of special damage, the money advanced on those buildings or (ii) the value of improvements on the land as well as the expenses of those improvements; and (iii) in accepting and awarding as an item of special damage, an amount in excess of the “consideration” or sum shown on the face of the conveyance as the purchase price for the land” .

Mr. M. K. Gbajabiamila appeared for the appellant. When in the course of his argument on the appeal we pointed out to him that no particulars were given in respect of the errors in law complained of in grounds 1, 3 and 5 he abandoned grounds 1 and 3 and sought leave of the court to argue ground 5 without the said particulars. Leave was granted, the respondent not objecting. Ground 4 dealt with quiet enjoyment in respect of which the learned trial Judge found for the defendant and refused to award damages. This ground of appeal therefore became irrelevant and this was pointed out to the appellant’s Counsel in the course of his arguing that ground. In the result only grounds 2 and 5 were left to be seriously pursued.

At the conclusion of the hearing of the appeal we did not call upon Mr. Suru Akele, who appeared for the Respondent, to reply as we were satisfied that no sufficiently valid argument had been advanced impugning the judgement of the learned trial Judge. Nonetheless judgment was reserved.

It is necessary to shortly recapitulate the salient facts adduced in evidence before the trial Judge. The plaintiff (now the respondent), who was a Commercial Officer in the Electricity Corporation of Nigeria, in 1965, bought a plot of land measuring 100 ft. X 100 ft. along the New Lagos Road, Benin City, from the defendant (now the appellant) for a total sum of 302pounds which included disbursements. He employed the services of a Surveyor to survey the land paying the fees thereof. He cleared the land, uprooting trees and stumps on the land. He employed the services of a Solicitor who prepared a Deed of Conveyance which was duly stamped and registered and the plaintiff paid the fees. He got a Draughtsman to prepare a building plan, which he did for a fee. He employed the services of a contractor who built the boy’s quarters and constructed the foundations of the main building.

It was while the boys Quarters were being built that one Mr. Edosomwan challenged the plaintiffs title to the land. He later wrote through his Solicitor in support of this challenge. The plaintiff complained to the defendant who told him that Mr. Edosomwan had no valid title to the land, that she was the rightful owner of the land, and that the plaintiff should continue building on the land. She told him that Mr. Edosomwan had no case. Mr. Edosomwan however took action against the plaintiff which was heard in the High Court by Ighodaro, Acting Judge (as he then was), who found that Mr. Edosomwan’s case was well founded and declared the title to the land to be vested in him (Exhibit M). With this judgement, the plaintiff lost the land and naturally turned round to sue the defendant/appellant for a return of his purchase money and other disbursements and expenditures.

The defendant did not give evidence or call witnesses. At the close of plaintiffs case her Counsel stated:

“We offer no evidence. We did not tender any document”.

This case was heard on pleadings. Paragraphs 2,3,4,5,6,7,8,9,10,11 and 12 are germane to the crux of the plaintiffs case:

“(2) The Plaintiff bought a parcel of land measuring some 100 feet by 100 feet from the Defendant for 302.0.0pounds (Three hundred and two pounds) about March, 1965.

(3) The said parcel of land for which the Defendant received the said sum of 302.0.0pounds (Three hundred and two pounds) lies situate in Ward 23/L Uselu Quarters, Benin City.

(4) By a Deed dated 12th day of October, 1966, the Defendant, Madam Jarin Robinson formally conveyed the said parcel of land to the Plaintiff.

(5) The Defendant in the said Deed of conveyance represented that she had unencumbered freehold title to the said parcel of land. The aforesaid Deed of Conveyance will be founded upon at the trial.

(6) By a letter No. SOU/2/175/66 dated 28/12/66, the Solicitor of one Mr. Uwensuyi Edosomwan challenged the right of the Plaintiff to, and claimed ownership of, the said parcel of land which the Plaintiff has prepared ready for his building.

“(7) The Plaintiff informed the Defendant of Mr. Uwensuyi Edosomwan’s claim to the said land.

(8) The Defendant in reply confirmed her ownership of the said parcel of land and told the Plaintiff to ignore Mr. Uwensuyi Edosomwan’s claim.

(9) Relying on the Defendant’s assurance in conjunction with the Defendant’s covenants for title contained in and quiet enjoyment implied in the said Deed of Conveyance, the Plaintiff employed the services of a contractor to erect a Boys’ Quarters and the main building on the said parcel of land.

(10) The said Mr. Uwensuyi Edosomwan took no further steps in his claim to the parcel of land until after the completion of the Boys’ Quarters and the foundation of the main building when he instituted legal proceedings against the Plaintiff claiming in Suit No. B/29/67 as follows:

(a) Declaration of title to the said parcel of land.

(b) Recovery of possession of the said parcel of land.

and

(c) An injunction to restrain the Plaintiff, his servants and agents from interfering with the said parcel of land.

“(11) In the said action, judgement was given In favour of Mr. Uwensuyi Edosomwan for his claims in paragraph 10 above with 52.10.0pounds costs against the Plaintiff. The judgement in Suit No. B/29/67 will be founded upon at the trial.

(12) As a result of the loss of the said parcel of land by the Plaintiff, he (the Plaintiff) suffered the following Special Damages…”

The plaintiff then gave particulars of the special damages.

Not having given evidence either in support of her pleadings or in challenge of the evidence of the plaintiff, the defendant must be assumed to have accepted the facts adduced by the plaintiff notwithstanding her general traverse as contained in her paragraph 6 of the Statement of Defence in which she averred that:

“(6) Save as hereinbefore expressly admitted, the defendant denies each and every allegation of fact contained in the plaintiffs Statement of Claim as if the same were set out herein serially and specifically denied” .

Section 136 of the Evidence Act Cap 62 firmly fixes the burden of proof in civil cases. It provides in sub-sections (1) and (2) that:”136. (1) In civil cases the burden of first proving the existence or non-existence of a fact lies on the party asserting it if no evidence were produced on either side, regard being had to any presumption that may arise on the pleadings.

(2) If such party adduces evidence which ought reasonably to satisfy a jury that the fact sought to be proved is established, the burden lies on the party against whom Judgement would be given if no more evidence were adduced; and so on successively, until all the issues in the pleadings have been dealt with.”

Dealing with the subject of the “Burden of proof on the pleadings” the 11th Edition of Phipson on Evidence has this to say at paragraph 92:

“The burden of proof, in this sense, rests upon the party, whether plaintiff or defendant, who substantially asserts the affirmative of the issue.

“It is an ancient rule founded on consideration of good sense, and it should not be departed from without strong reasons.” It is fixed at the beginning of the trial by the state of the pleading, and it is settled as a question of law, remaining unchanged throughout the trial exactly where the pleadings place it, and never shifting in any circumstances whatever. If, when all the evidence, by whomsoever introduced, is in, the party who has this burden has not discharged it, the decision must be against him.” It cited as authorities the well known and familiar cases of JOSEPH CONSTANTIVE STEAMSHIP LINE LTD. v. IMPERIAL SMELTING CORPORATION 1942 A.C.154 AT 174 ; SELDON v. DAVIDSON (1968) 1 W.L.R.1083; PICKUP v. THAMES INS, CO. 3 Q.B.D. 594. 600; and WAKELIN v. L. & S. W. RV. 12 APPEAL CASES 41, 45.

It is clear to us that once pleadings have been settled, and issues joined, the duty of the court is to proceed to the trial of the issues (see: The Gold Coast and ASHANTI ELECTRIC POWER DEVELOPMENT CORPORATION LTD v. THE ATTORNEY GENERAL OF THE GOLD COAST (1937) 3 W.A.C.A. 215) and if one party fails or refuses to submit the issues he has raised in his pleadings for trial by giving or calling evidence in their support, the trial must, unless there are other legal reasons dictating to the contrary, resolve the case against the defaulting party.

A High Court of competent jurisdiction presided over by Ighodaro, J., had found and declared that the appellant had no title to pass, or transfer, to the respondent, and that the appellant knew at the time of the purported sale transaction with the respondent that she had no title to the land. In Exhibit M (the case between the present respondent as a defendant and Mr. Edosomwan as the plaintiff) Ighodaro, J., specifically held that:

“On October, 1966 “(the date of the Conveyance by the appellant to the respondent) “Madam Robinson conveyed to the defendant 1523.50 sq. yds with knowledge that it was not free from in cumbrances. Exhibit P”.

Further on, he again held:

“It is quite clear from the documentary evidence above, that if the Oba properly made a grant to the plaintiff of the land in dispute then there was no more land given to the defendant, since the plaintiff was a different person from the defendant. And again, the Conveyance made by Mrs. Robinson to the defendant was made in 1966 and she would be deemed to have had notice of the Conveyance made by the Oba to the plaintiff a year before in October 1965. On the recital in Mrs. Robinson’s Conveyance, there is reference to the vendor being in fee simple free from encumbrances. This is not correct. Comparing the root of title of both the plaintiffs vendor and the defendant’s vendor, in my view the plaintiffs vendor and the defendant’s vendor, in my view the plaintiff has a better title to the land in dispute”.

The conduct of the defendant in this land sale transaction had certainly some vestiges of fraud. Here was this appellant vendor who knew clearly that she had no title to the land in dispute (so found by Ighodaro, J.), nonetheless she proceeded to sell the land to the respondent and even when the respondent brought to her notice the fact that a third party was challenging his title to, and possession of, the land, she nonchalantly told him not to mind the third party and that he should proceed to develop the land. Even when proceedings for declaration of title, possession and in junction were taken out in the High Court (Exhibit M) against the respondent and judgment given against him, she merely told him that she would get a copy of the court proceedings and refer it to her lawyer for study. Thereafter, she did nothing about it. She did not seek to appeal against the judgment, or get her purchaser to appeal, or confer with the purchaser, or return her purchaser’s money. Indeed, the evidence showed that she simply ignored the whole matter although she had not only the purchaser’s purchase money in her pocket, but also had put him to considerable expenditure in developing the land. Callousness ought not, in all circumstances, be too strong a word to describe her indifference.

Before dealing with the specific points raised by the appellant in the grounds of appeal argued, it will perhaps, be worth the while if we paused and considered the general principles governing breach of covenant for title, and this may, perhaps, be best appreciated against the background of their legal history.

In medieval times of the Anglo-Saxon era, a purchaser of land had the benefit of the law of warranty for the safeguard of his estate, although it was the general rule that he, after making all his investigations, took the land at his own risk a risk put in legal phraseology as caveat emptor. This law of warranty took its origin from the feudal lord’s duty to protect his tenant in exchange for his services. In 1290 by the statute of Quia Emptores, tenure between vendor and purchaser of a fee simple was abolished and it became customary for vendors to give an express warranty of title. If the purchaser was disturbed by anyone having a superior title, the vendor could be made liable in damages or, in the case of eviction, be compelled to give lands of equal value in compensation. This old law of warranty, bound up with real actions and feudal land law, fell out of use with them, and the old system of warranties was replaced by the practice of giving express covenants for title, the form for which became settled between 1606 and 1674. (See: Platt on Covenants p.304).

In 1881 by the Conveyancing Act, 1881 (see: S.7 thereof, later replaced with amendments by S.76 ofthe Law of Property Act, 1925), it became unnecessary to give express covenants for title, since they were implied, if the conditions therein stipulated were satisfied. (See: The Law of Real Property by Megarry and Wade, 4th Edition pages 602-3).

One of these implied covenants is that a vendor in fee simple has title to the land he conveys and if that title is defective the purchaser is entitled to have the conveyance set aside. In the case of want of title it was held, as far back as 1815, in Edwazde v. M’Leav (1815) G. Coop 308 at 312 (a case which really dealt more with fraud than with breach of covenant for title) that the purchaser need not wait until eviction, but he may at once, claim to have the conveyance set aside. This principle of law has been accepted by judicial pronouncements, and in the Midwestern State of Nigeria from where this case emanated, additionally by legal enactment. Abbott, R.J., delivering the judgement of the Federal Supreme Court in A.Y. OJIKUTU v. Z. O. DEMUREN (1957) 2 F.S.C. 72 AT P.73 brought clarity to the principle when he stated that:

“It is manifestly clear in the first place that a man who pays money for land is entitled in the normal course of events to value for his money, and a part of that value must be represented by the title which he acquires by purchase. In this case, the respondent impliedly covenanted that he had a good right to convey the property to the appellant” .

Further on he said:

“Quite apart therefore, from the express covenant, which, in my view, extends the ambit of the implied covenant, the appellant is obviously entitled at the very least to the return of his purchase money. ”

Identical view was expressed by this Court in OBEDIAH ASHAYE v. MRS. V.1. AKERELE (1966) 1 All N. L. R. 294 AT 299. 300 – a case in which the defendant, Mrs. Akerele, was held not to have a good title to the land in dispute or the right to compel others to make a good title, on the date when the agreement to sell the land was made on her behalf.

S.100(1)(a) of the Property and Conveyancing Law. 1959, W.R. No. 21 of 1959 – a law, which the learned trial Judge, in rightly rejecting the contention that this case was a matter for the application of Native Law and Custom, rightly held was applicable to this case – specifically provides for implied covenant for title in a conveyance. That part of S .100 reads:

“100. (1) In a conveyance there shall, in several cases in this section mentioned, be deemed to be included, and there shall in these several cases, by virtue of this Law, be implied, a covenant to the effect in this section stated, by the person or by each person who conveys, as far as regards the subject-matter or share of subject-matter expressed be conveyed by him with the person, if one, to whom the conveyance is made, or with the persons jointly, if more than one, to whom the conveyance is made as joint tenants, or with each of the persons, if more than one, to whom the conveyance is (when the law permits) made as tenants in common that is to say:

“(a) In a conveyance for valuable consideration, other than a mortgage, a covenant by a person who conveys and is expressed to convey as beneficial owner in the terms set out in Part 1 of the second Schedule to this Law;”

Part I of the Second Schedule referred to, provides:

“COVENANT IMPLIED IN A CONVEYANCE FOR VALUABLE CONSIDERATION, OTHER THAN A MORTGAGE, BY A PERSON WHO CONVEYS AND IS EXPRESSED TO CONVEY AS BENEFICIAL OWNER.

That, notwithstanding anything by the person who so conveys or any one through whom he derives title otherwise than by purchase for value, made, done, executed, or omitted, or knowingly suffered, the person who so conveys, has, with the concurrence of every other person, if any, conveying by his direction, full power to convey the subject-matter expressed to be conveyed, subject as, if so expressed, and in the manner in which, it is expressed to be conveyed, and that, notwithstanding anything aforesaid, that subject-matter shall remain to and be quietly entered upon received, and held, occupied, enjoyed, and taken, by the person to whom the conveyance is expressed to be made, and any person deriving title under him, and the benefit thereof shall be received and taken accordingly, without any lawful interruption or disturbance by the person who so conveys or any person conveying by his direction, or rightfully claiming or to claim by, through, under, or in trust for the person who so conveys, or any person conveying by his direction, or by, through or under anyone (not being a person claiming in respect of any estate or interest subject (where to the conveyance is expressly made), through whom the person who so conveys derives title, otherwise than by purchase for value:

And that, freed and discharged from, or otherwise by the person who so conveys sufficiently indemnified against, all such estates, incumbrances, claims and demands, other than those subject to which the conveyance is expressly made, as, either before or after the date of the conveyance, have been or shall be made, occasioned, or suffered by that person or by any person conveying by his direction, or by any person rightfully claiming by, through, under, or in trust for the person who so conveys, or by, through, or under anyone through whom the person who so conveys derives title, otherwise than by purchase for value:

And that, freed and discharged from, or otherwise by the person who so conveys sufficiently indemnified against, all such estates, in cumbrances, claims, and demands, other than those subject to which the conveyance is expressly made, as, either before or after the date of the conveyance, have been or shall be made, occasioned, or suffered by that person or by any person conveying by his direction, or by any person rightfully claiming by, through, under, or in trust for the person who so conveys, or by, through, or under anyone through whom the person who so conveys derives title, otherwise than by purchase for value.

And further, that the person who so conveys, and any person conveying by his direction, and every other person having or rightfully claiming any estate or interest in the subject-matter of conveyance other than an estate or interest subject where to the conveyance is expressly made by, through, under, or in trust for the person who so conveys, or by, through, or under any person conveying by his direction, or by, through, or under anyone through whom the person who so conveys derives title, otherwise than by purchase for value, will, from time to time and at all times after the date of the conveyance, on the request and at the cost of any person to whom the conveyance is expressed to be made, or of any person deriving title under him, execute and do all such lawful assurances and things for further or more perfectly assuring the subject-matter of the conveyance to the person to whom the conveyance is made, and to those deriving title under him, subject as, if so expressed, and in the manner in which the conveyance is expressed to be made, as by him or them or any of them shall be reasonably required.”

Logically following the implied covenant for title, the law imposes on a vendor not only the negative duty not to conceal but also the positive duty to disclose any defect in his title. In short the law imposes on a vendor in a conveyance the duty to tell the truth. Silence will amount to misrepresentation. Citing the authorities of Re Marsh and Earl Granville (1883) 24 Ch.D11 at p.17; Re Banister (1879) 12 Ch.S. at p.143; and Redgrave v. Hurd (1881) 20Ch.D. atp.143, Darton the Law of Vendors and Purchasers, 7th Edition, VOL1, has this to say at pp.103-104:

“A vendor who desired to limit the rights of a purchaser must do so by explicit and plain conditions, and must tell the truth. There must, of course, be no misrepresentation upon the subject, or any artifice to divert attention; and if the vendor be informed by the purchaser of his object in buying, and the lease contain covenants which will defeat that object, mere silence will in Equity be equivalent to misrepresentation; ”

In the last cited case of Redgrave v. Hurd. also reported in 1881-1885 All E.R. (Reprint) at S.7 (a case of sale of leasehold property and law practice), the Court of Appeal in England not only upheld the above principles but also held that it is no defence to an action for recission of a contract on the ground of misrepresentation that the party who seeks to set aside the contract was afforded opportunities of investigation and so of ascertaining the inaccuracy of the representation, but made the investigation so inefficiently or negligently that he did not discover the misrepresentation; that in ordinary circumstances the false representation once made, relieved the purchaser from making an investigation, even if the opportunity is afforded. It is, we think, proper at this stage to indicate that the principle of law we have just discussed, standing alone, is an answer to the arguments raised in ground 2, but we will say more about ground 2 later .

In the present appeal, as we had earlier stated, the established fact (Exhibit M) was that the appellant knew of the defect in her title before she purported to sell and convey the land in dispute to the respondent. From all the facts and circumstances established, the appellant also knew the purpose for which the respondent was buying the land namely, to erect residential buildings on it.

We now turn to ground 2 of the grounds of appeal under which Mr. Gbajabiamila strenuously urged on us that the learned trial Judge misdirected himself on the doctrine of Caveat emptor, which he said, applied to the circumstances of this case. He contended that it was for the respondent to investigate the title of the vendor and that it was not for the vendor to disclose defects in her title, the principle of law, he said, being one of caveat emptor.